The Use of Confessionary Evidence under the Counter-Terrorism Laws of Sri Lanka: An Interdisciplinary Study 9789048531233

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The Use of Confessionary Evidence under the Counter-Terrorism Laws of Sri Lanka

Religion and Society in Asia The Religion and Society in Asia series presents state-of-the-art cross-disciplinary academic research on colonial, postcolonial and contemporary entanglements between the socio-political and the religious, including the politics of religion, throughout Asian societies. It thus explores how tenets of faith, ritual practices and religious authorities directly and indirectly impact on local moral geographies, identity politics, political parties, civil society organizations, economic interests, and the law. It brings into view how tenets of faith, ritual practices and religious authorities are in turn configured according to socio-political, economic as well as security interests. The series provides brand new comparative material on how notions of self and other as well as justice and the commonweal have been predicated upon ‘the religious’ in Asia since the colonial/imperialist period until today. Series Editors Martin Ramstedt, Max Planck Institute for Social Anthropology, Halle, Germany Adam Yuet Chau, University of Cambridge, Cambridge, United Kingdom

The Use of Confessionary Evidence under the CounterTerrorism Laws of Sri Lanka An Interdisciplinary Study

Visakesa Chandrasekaram

Amsterdam University Press

Cover image: Visakesa Chandrasekaram, Offices of lawyers in Kandy (Sri Lanka) on a holiday Cover design: Coördesign, Leiden Layout: Crius Group, Hulshout Amsterdam University Press English-language titles are distributed in the US and Canada by the University of Chicago Press. isbn 978 94 6298 157 7 e-isbn 978 90 4853 123 3 (pdf) doi 10.5117/9789462981577 nur 754 © Visakesa Chandrasekaram / Amsterdam University Press B.V., Amsterdam 2017 All rights reserved. Without limiting the rights under copyright reserved above, no part of this book may be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, recording or otherwise) without the written permission of both the copyright owners and the authors of the book.



To Appa

Contents 1 Do Tigers confess? Narratives of the war The ethnic conflict Combating rebellions Confessions as evidence The state of exception Finding the ‘truth’ about confessions

9 10 17 26 31 41 50

2 Rebellion and martyrdom 57 Martyrdom 61 Pride, loyalty, and discipline 65 The suicide strategies 68 Truth, fear, and fantasy 75 3 Facts, falsities, and fictions Confession templates The institutional voice Semantic criteria Legal criteria Semiotic criteria Fictions vs. reality

79 81 86 92 94 99 111

4 Punitive interrogation of Tamil Tiger suspects The suspect population Secretive investigations and the right to silence Punishment of the suspect The truth of torture

115 121 126 134 142

5 Judgement of the terrorist against the ‘formula of justice’ ‘Finite justice’ in the journey of the criminal justice system Constructing the case against the terrorist Inequalities in the justice system The formula of justice (Pre)judgement of the terrorist by the judiciary Justice denied

145 146 154 157 164 178 181

6 Fantasies, fictions, myths, and denials about Tamil Tigers’ confessions 185 End of the Tamil Tigers’ era 186 Consequences of the mass prosecution strategy 192 Tigers don’t confess? 195 The future of confessions 200 Appendix 201 Confession of Nallaratnam Singarasa 201 Confession of Sellapulle Mahendran 205 Acronyms 209 Acknowledgements 211 About the author

213

Bibliography 215 Index 225

1

Do Tigers confess?

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.1 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.2 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,3 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 1 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. 2 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. 3 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.

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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?

Narratives of the war 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.4 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 terrorists5 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. 4 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 specif ic grievances. Contrasting views are presented in Uyangoda, Questions of Sri Lanka’s Minority Rights, and Somasundaram, Scarred Minds. 5 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.

Do Tigers confess?

11

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’.6 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’.7 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: 6 Swamy, Inside an Exclusive Mind, p. 76. 7 Ibid., p. 130, quoting Prabhakaran responding to pressure to take part in the Thimpu talks in 1985.

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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.8

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 highsecurity 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 8 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.

Do Tigers confess?

13

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.9

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.10 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 9 Field interviews, Colombo (June 2007). 10 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’.

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confessionary evidence and securing acquittals. Why would the courts reject most of these confessions? By posing the question, ‘Do Tigers confess?’, this project inevitably embarks on a quest for truth and justice. The dilemma of this quest is that truth has always been a relative and subjective concept, defined and applied in different forms in different disciplines; and for the courts truth is deduced by legal formulas. Although a criminal trial is seen as ‘an epistemic engine’ or a tool for ‘ferreting out the truth’, what occurs in reality is that the court settles the truth of the verdict by comparing ‘facts’.11 The function of the court is not to act as a commission that seeks to identify the truth, but rather to act as a machine that mediates disputes between parties and a mechanism that maintains law and order.12 This dispute-resolution mechanism is unfortunately not free from error. It can produce ‘false inculpatory findings’ by declaring an innocent person guilty, or present ‘false exculpatory findings’ by failing to convict a guilty person.13 In this regard, an issue that has been debated by scholars for many years is how to distinguish between the false finding of the court and the truth of the crime. Wooten submits: ‘truth is often very hard, sometimes impossible to find, and society cannot indefinitely postpone dispute settlement while the quest proceeds. A number of things may deflect, override, or force compromises on a court’s search for truth’.14 This contradiction between truth and evidence could produce parallel realities between the judicial system and non-judicial inquiries such as truth commissions. This research project acknowledges the parallel existence of truth and evidence both within and outside the domain of law. Hence, the intention of this research is not to establish the truth about confession in any abstract, metaphysical form. Rather, multiple criteria will be used to understand the nature of truth as it is represented within multiple disciplinary frameworks. Why is it important to venture outside the legal domain and broaden the parameters of this discussion to include non-legal disciplinary perspectives? In the wake of 9/11 events Spivak offers a provocation arguing that the war against terrorism ‘zoomed down to a lawsuit and zoomed up to face an abstraction: terrorism’.15 Two views are noteworthy here. First, the war against terrorism is an abstraction that has ‘zoomed out’ to an infinity encompassing all of the state and non-state entities, including their agencies and 11 Laudan, Truth, Error, and Criminal Law, pp. 2, 13. 12 Wootten, ‘Conflicting imperatives’, p. 17. 13 Laudan, Truth, Error, and Criminal Law, p. 10. 14 Wootten, ‘Conflicting imperatives’, p. 19. 15 Spivak, ‘Terror’, p. 82.

Do Tigers confess?

15

constituencies, instigating a process of both direct and indirect politicisation and militarisation. Second, despite the multifarious nature of terrorism, this abstraction has strangely zeroed in on lawsuits, whereby the act of terrorism is defined within the domain of law and the status or guilt of the terrorist is determined and punished according to the law. This approach disregards other elements that are either directly or indirectly associated with terrorism in the abstraction. Further, with this approach, the legal institution effectively exercises a monopoly over the determination of the status of the terrorist. By arguing that the abstraction of terrorism ‘zooms down’ to lawsuits, is Spivak questioning this state monopoly? Counter-terrorism laws incorporate certain legal norms: ultra-crimes, terrorism offences and thereby ultra-criminals, the terrorists. Conversely, the abstractions of terrorism comprise norms that go beyond the simple notions of crime and punishment, such as military operations conducted with the popular support of the masses, subtitled by revolutionary rhetoric based on secular or religious ideologies. On the other hand, terrorism is largely countered outside the domain of law, by military and political exercises, and not strictly by legal exercises such as passing counter-terrorism laws. It could therefore be argued that this purely legal approach to defining the boundaries of terrorism is too narrow in scope, and does not capture the economic, political, social, cultural, and military dimensions of the problem. Therefore, any examination of a confession made by a terrorist, which is a by-product of counter-terrorism measures, also needs to acknowledge the multiple underlying factors that lead to terrorism, rather than limiting this probe to a legal framework. At the prison Sellapulle continued: On 28 September 1993, our village was rounded up by the army and the police. All the villagers were summoned and paraded before a spotter who was covering his face with a gunnysack, hiding his identity. There were two holes in the sack so the spotter could see us. He nodded his head identifying me as a Tiger […] When I was produced before the court, even before the trial began, the judge said, ‘I will give you 30 years’ conviction’.16 I was convicted wrongfully. I have been in prison for nearly 15 years. My life has gone. I don’t have a future. I have given up. Now I am 30 years old and I have been in the prison for 14 years already. 16 Interviews, Colombo (June 2007): Sri Lankan judges are known for making these types of comments in the open court, disregarding appropriate court etiquette. This remark was corroborated by one of the lawyers who had represented the accused. Also see Hanlon and Dabhoiwala, The Other Lanka, p. 35.

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According to this unofficial testimony, Sellapulle’s guilt was determined by a combination of counter-terrorism measures, which included: (a) the substantive laws that criminalised certain acts against the state that Sel­ lapulle was said to have committed; (b) the procedural laws that ensured a chain of discretionary decisions made by the agents of the state, from the arrest to the sentencing; and (c) the militarisation of the policing mechanism, which encouraged the use of certain arbitrary methods to arrest suspects and gather evidence. Such measures have also been adopted elsewhere across the globe, at times when a state’s existence is threatened by politically organised groups of dissenters, particularly when they have chosen military means to achieve their goals. Commenting on Northern Ireland’s counter-terrorism measures, Greer argues that a modern state can respond to political violence in two ways: (a) through ‘criminalisation’, which modifies the criminal justice system to secure conviction effectively by criminalising certain acts; and (b) through ‘militarisation’, which facilitates detention without trial, selective assassination and shooting on site.17 Observing the American response to the 9/11 terrorist attacks, Butler notes that the ‘suspension of law’ becomes a new exercise of the state that empowers the administrative bureaucracies within the law to determine who is to be tried, who is to be detained, and whether to offer a trial or indefinite detention for an accused.18 Scholars have sought to make sense of these recent examples of the suspension of law in Western democracies by revisiting Schmitt’s theory of the ‘state of exception’, formulated in the interwar years, and Agamben’s interpretation of the idea of ‘exception’ through his concept of ‘bare life’.19 In the Sri Lankan context, it was the declaration of a state of emergency and the passing of the counter-terrorism laws that enabled the state to enforce ‘exceptions’ to the criminal justice regime, which, in turn, allowed confessions like Sellapulle’s to come into existence and to feature as evidence in court. To understand these exceptions and the conditions within which they were declared, it is necessary to first consider the historical, political, social, and military contexts set against a backdrop of civil war in Sri Lanka. This will assist us in understanding the position of Sri Lanka in the context of global manifestations of terrorism and counter-terrorism, while recognising the unique features of the Sri Lankan conflict. 17 Greer, Supergrasses, p. 28. 18 Butler, Precarious Life, p. 51. 19 See Schmitt, Political Theology II; Schmitt, Political Theology; and Agamben, State of Exception.

Do Tigers confess?

17

The ethnic conflict20 The island of Sri Lanka is home to approximately 21 million people from three main ethnic groups: 74 per cent Sinhalese, 18 per cent Tamils and 7 per cent Muslims. There are also Malays and Burgers (of European descent) who comprise less than 1 per cent of the population.21 Tamils claim the northern and eastern provinces as their traditional homeland, but they tend to live, work and travel in the other provinces, in particular around the capital, Colombo. The Tamil community includes approximately 1.2 million Indian Tamils and their descendants who were brought by the British as indentured labourers to work in the coffee and tea plantations. This community lives predominantly in the areas surrounded by the Central Province and has very little political connection with the Sri Lankan Tamils in the north and east, where the war was fought. However, on rare occasions Indian Tamils have been arrested as suspected terrorists and prosecuted using confessionary evidence. After achieving independence from the British colonial administration in 1948, the United National Party (UNP) led by Mr. D.S. Senanayake and his predominantly Sinhalese cabinet assumed control of the Sri Lankan state. The country was under a sovereign and unitary Constitution for the first time, after many centuries of colonisation by the Portuguese (1505), the Dutch (1655), and the British (1796). One of the first initiatives of Prime Minister D.S. Senanayake was to establish irrigation projects and plan settlements of the Sinhalese community in the northern and eastern areas, which was perceived as Sinhalese colonisation by Tamils.22 In the early 1950s, a defector from the UNP, Mr. Bandaranaike, another Sinhalese, formed the Sri Lanka Freedom Party (SLFP), promising to enhance opportunities for the Sinhalese-speaking community. One of the reforms of his party included changing the national language from English to Sinhala. When Mr. Bandaranaike’s government moved the Bill of the Language Act in the parliament, left-wing MP Bernard Soysa warned: ‘You have paved the way 20 The historical information provided without referencing notes has mainly been collected from the reports published by University Teachers for Human Rights (UTHR) of Sri Lanka (www. uthr.org). UTHR is a collective of Sri Lankan scholars who worked in exile or underground during the war. 21 Official website of the Government of Sri Lanka, www.priu.gov.lk, viewed January 2010. It should be noted that these statistics have significantly changed due to internal displacement and international migration. It should be also noted that most Sri Lankan Muslims speak Tamil at home. 22 Sabaratnam, Ethnic Attachments in Sri Lanka, pp. 196-202.

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with this Bill towards the unification of the Tamils on a single demand that can have the direst, the deadliest consequence in the future to our country’.23 As Mr. Soysa predicted, the nation was divided when Tamils protested by violating civil laws and the Sinhalese retaliated by damaging Tamil houses and businesses outside the northern and eastern provinces. Many commentators have seen the introduction of this legislation as the initial instigator of the ethnic conflict. When Mr. Bandaranaike was assassinated by a Buddhist monk, his widow, Mrs. Sirimavo Bandaranaike, assumed control of the party, promising more radical changes. This alienated the Tamils even further, fuelling the aggressive rise of Tamil nationalism. Following in her husband’s footsteps, Mrs. Bandaranaike enacted Sinhala as the language of the parliament and the judiciary in 1961. In response, a sathyagraha (a non-violent demonstration) was organised by the Tamils’ Federal Party, which was militarily suppressed. Mrs. Bandaranaike returned to power in 1970, with many left-wing parties in her coalition promising to establish a republic. Tamils were threatened again when she removed several provisions of the previous Constitution that protected the interests of minorities. The new Constitution of the republic declared Buddhism, the religion practised by most of the Sinhalese community, to be the state religion. Mrs. Bandaranaike’s next target was the Tamils in the north and east who were ethnically ‘over-represented’ in the public service and universities. In 1974, she abolished the system of meritbased selection into higher education and introduced the standardisation policy, limiting the proportion of Tamil students in higher education to match their representation in the general population.24 This closed the door to thousands of Tamil youths hoping to enter university. While the SLFP-led coalition was pushing Tamils away from the mainstream political parties by undertaking these sweeping reforms, the Tamils in the north and east had formed the Tamil United Liberation Front (TULF) to attract those who disapproved of the government’s ethnically biased policies. On 14 May 1976, the TULF passed a formal resolution, known as the Vaddukoddai Resolution, declaring a ‘sacred fight’ for freedom and a separate state. This led to another surge of violence between the Sinhalese and Tamil communities.25 Thousands of Tamil youth who had lost their faith in a democratic means of securing their rights, supported the idea of Eelam 23 Muthiah and Wanasinghe, Two Languages, One Nation, p. 6 (citing Government of Sri Lanka, Hansard Reports, 19 October 1955, p. 200). 24 Sabaratnam, Ethnic Attachments in Sri Lanka, p. 194. 25 Ibid., p. 213.

Do Tigers confess?

19

(a separate state for Tamils), and gathered around small military groups who were waging a guerrilla-style urban warfare in the north against the Sri Lankan Government.26 In the preceding years, Tamil militants had been engaging in waves of violence, assassinating their political opponents, robbing banks, and attacking police officers in the north. In 1977, the UNP, led by Mr. J.R. Jayewardene, came to power with a landslide victory. By introducing a powerful office of executive presidency through his radical constitutional reforms, Mr. Jayewardene established an autocratic Sinhalese leadership that was not responsible to the parliament.27 The Tamils expressed their resentment by democratic means through their TULF representatives. In the meantime, the anger of the Sinhalese community towards the TULF and the Tamil militant groups continued to grow, while UNP and SLFP leaders alike fuelled the ethnic divisions by vowing to crush Tamil terrorism. When the Tamil militants attacked an army convoy in July 1983, killing 13 soldiers, Sinhalese in the south sought revenge by killing Tamil men, raping Tamil women, and destroying the houses and businesses of Tamils.28 In most cases, the police and the army quietly watched the rampage without stepping in to protect the Tamils, thus giving rise to the widespread belief that the riots were sponsored by Sinhalese ministers of the UNP government. The ‘Black July’ riots injected fresh blood into the Tamil militant groups in the north as they were able to recruit thousands of men and women who were returning to the north after losing their property, jobs, family members, and honour. Tamil-armed groups such as the People’s Liberation Organisation of Tamil Eelam (PLOT), the Tamil Eelam Liberation Organisation (TELO) and the Eelam Revolutionary Organisation of Students (EROS) grew dramatically with local and international support, until the Tigers destroyed or paralysed these competing groups, claiming that the LTTE was the sole representative of the Tamils. In 1987, the UNP government allowed the Indian Government to intervene with a peace accord to disarm the Tigers. The Tigers initially fought back, but later withdrew into the thick forests after which time they commenced negotiations with the new leader of the UNP, Mr. Ranasinghe Premadasa, thus ignoring India’s supremacy. When the Indian Army returned home as demanded by Mr. Premadasa, the Tamil Tigers returned to war, which became known as the Eelam War II. 26 Kaarthikeyan and Raju, Triumph of Truth, p. 164. 27 The President of Sri Lanka is not accountable to the parliament, similar to the President of the United States. The President is elected by the people in a presidential election. 28 According to the Commissioner General for Essential Services approximately 2000-3000 Tamils were killed in July 1983. See University Teachers for Human Rights (Jaffna), A Marred Victory and a Defeat.

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This was succeeded by the Eelam War III, and later the Eelam War IV – each of which followed short-lived ceasefire agreements. Approximately 80,00029 Sinhalese, Tamil, and Muslim people died in the separatist wars until the Sri Lankan Government declared victory over the Tigers in May 2009. In the post-colonial era, the lesson that Tamils learnt was that neither of the country’s key political parties – the UNP and the SLFP – was open to considering a political solution to the ethnic conflict. When the UNP signed a peace deal with the LTTE with the support of India in 1987, the SLFP took to the streets, claiming that the solutions would ‘break the nation into pieces’; likewise, when the SLFP was proposing a federal solution in 1994, the UNP appropriated the slogan of ‘breaking the nation’. Observing this situation, De Votta has claimed: ‘The cancer that eats at Sri Lanka’s political life is “ethnic outbidding” – the auction-like process whereby Sinhalese politicians strive to outdo one another by playing on their majority community’s fear and ambitions […] Ethnic outbidding has contributed to anti-Tamil actions, and the next wave of anti-Tamil riots’.30 The Sinhalese also learnt an important lesson from the war: the leader of the Tamil Tigers, Mr. Prabhakaran, was not to be trusted because he had used all previous ceasefire agreements as an opportunity to re-arm and strengthen his military power. Analysing the history of the conflict, the University Teachers for Human Rights (UTHR) has sought to identify the roots of the militarisation of Tamil society: ‘we must re-emphasise that the Tamil rebellion was the result of the leering loutishness of the Sinhalese dominated state that tried to deal with the minorities by the use of feudal thuggery and persistent deprivation and humiliation’.31 Unfortunately, the armed rebellion of Tamil youth failed to secure dignity for their humiliated constituency; instead, the Tigers’ rebellion further institutionalised violence by militarising Tamil society and polarising the Tamil population through the naming of patriots and the shaming of betrayers. This cycle of militarisation continued as the Sinhalese majoritarian state sought to quash the rebels with military recruitment campaigns, fundraising programs and the promotion of pro-war literature. 29 Wijewardana, How LTTE Lost the Eelam War, p. 1. These f igures could be signif icantly increased based on the estimates of the investigations into the war crimes committed during the final stage of the war. Also see the television documentary Sri Lanka Killing Field. According to this documentary, up to 40,000 civilians died in the final stage of the war; thus, the number of casualties of the war may be up to 120,000. See the final chapter. Also see UN, Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka, p. 41. 30 DeVotta, ‘Illiberalism and ethnic conflict’. 31 University Teachers for Human Rights (Jaffna), A Marred Victory and a Defeat.

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As De Mel describes, this militarisation of Sri Lankan society has led to the military taking ascendance over civilian institutions as the state has increasingly, and visibly, come to rely upon militarised systems to police and regulate civilian movements and solve political problems.32 These systems that regulate civilian life through fear and coercion in the public domain are manifest in the arbitrary zoning of neighbourhoods and the establishment of checkpoints, special pass systems and resident registration systems. In this regard, Somasundaram adds: ‘the most tragic long term consequence of force [against the citizens by the military] is the development of a cult of violence […] It becomes a way of life’.33 Tamil and Sinhalese accounts of the island’s history prior to European colonisation contradict each other, which has exacerbated the ethnic divisions between the two communities. Somasundaram argues that the mutual suspicion between the Sinhalese and Tamils is largely due to the misrepresentation of the history of Sri Lanka through the promulgation of myths and legends.34 The Sinhalese believe that Sri Lanka is a ‘Sinhala country’, on the grounds that its civilisation is rooted in Sinhala, most of its inhabitants have been Sinhala speakers, and the principal states were regarded as Sinhala regimes.35 According to Indrapala, the view that the Sinhalese were the ‘proper inhabitants’ or ‘Aryans’ of the island in ancient times and that the Tamils were ‘Dravidian’ invaders came to dominate colonial historical writings. He adds that these tracts were mostly compiled according to an ‘uncritical acceptance of local chronicles’; therefore, this view that Sri Lankan history began at a single moment with a single event (Aryan colonisation by King Vijaya) dominates the island’s history as constructed by the European colonists. As Indrapala notes: ‘In this linear view, echoes of modern nationalism could unmistakably be heard’.36 For example, Nalin De Silva, one of the key Sinhalese nationalist writers, claims that the history of Sri Lankan Tamils cannot be traced beyond three and a half centuries. He adds that ‘it was the British who brought Tamils to Sri Lanka’.37 The Tamils in turn believe that they had a sovereign kingdom in the north that was administered independent of the influence of South India or the authority of the Sinhalese kingdoms. Thanapalsingham asserts that the origin of the Tamil people in Sri Lanka has been traced to the 32 De Mel, Militarizing Sri Lanka, p. 2. 33 Somasundaram, Scarred Minds, p. 118. 34 Ibid., p. 23. 35 Roberts, ‘Language and national identity’, p. 91. 36 Indrapala, The Evolution of an Ethnic Identity, pp. 24-26. 37 De Silva, ‘The Solution’, p. 6.

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Indus Valley civilisation in 2500 BC.38 The ‘Vaddukoddai Resolution’ (which introduced the Tamil separatist movement) claims the Tamils’ right to self-determination because the Tamil people have a ‘history of independent existence as a separate state over a distinct territory for several centuries’, until they were ‘conquered by the armed might of European invaders’.39 The majority of the members of both ethnic groups reject the notion that the population of the island-nation that is located along a much-visited historic trade route could have mixed and mingled with many ethnic groups and foreigners before the rigid dual identities of Tamils and Sinhalese were constructed and imposed by the European colonial masters. 40 This official history, based on the legends of the survival of the Sinhalese kingdom amid South Indian invasions, has fed into deep-seated fears among the Sinhalese. The dominant belief was that the Tamils had sought to take control of the nation with the support of their South Indian neighbours in Tamil Nadu, with whom they shared a language and a culture. In 1955, a junior member of the SLFP-led ruling party was quoted in the parliament as stating: ‘Sinhalese [were] fighting a life and death tussle against subtle Tamil moves to achieve extermination of Sinhalese race and unite Ceylon [Sri Lanka] with South India, a non-Hindi speaking Tamil land separate from India’. 41 Two decades later, this fear of invasion was still resonating in the parliament. In 1979, UNP minister Cyril Mathew claimed: ‘You all know that most of the Tamils live in the Southern provinces […] but can a Sinhalese man go to the North and East provinces and buy a land? There is no chance of that’. 42 Supporting such arguments, some Sinhalese nationalists discredited the Tamils’ claims for equality. Ranatunga has argued: ‘to claim that there were grievances particular only to a singular race in Sri Lanka is as much an absurdity’, 43 while Nalin De Silva has argued: ‘Here the problem itself is erroneous. The Tamils do not suffer injustices on account of being Tamil’. 44 38 Thanapalsingam, ‘Elam Tamil nationalism’, p. 195. 39 Wijewardana, How LTTE Lost the Eelam War, p. 320. 40 Roberts says; ‘As the reference to hybridity indicates, group boundaries are rarely watertight. Individuals and families, and sometimes even significant bodies of people, may change their affiliations and self-referential identity over generational time’; see Roberts, ‘Language and national identity’, p. 76. 41 Muthiah and Wanasinghe, Two Languages, One Nation, p. 4 (citing Government of Sri Lanka, Hansard Reports, 19 October 1955, p. 187): Edmund Samarakkody read a telegram sent to the Praja Socialist Party in India by K.M.P. Rajaratne, a junior minister of the ruling party. 42 Government of Sri Lanka, Hansard Reports, 21 May 1979, p. 135. 43 Ratnatunga, Politics of Terrorism, pp. 388-392. 44 Cited in Uyangoda, Questions of Sri Lanka’s Minority Rights, p. 94.

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The appropriation of the country’s ancient myths into the official history of the nation provided the foundation for the Sinhalese domination over the minorities. According to Jayawardena, the ideology of the SinhaleseBuddhists, both prior to and following the colonial period, was ‘distorted by a false consciousness’ consisting of a number of elements: the self-identified role of being ‘chosen people’ (chosen to defend the Sinhalese race and Buddhist faith), the belief that the Sinhalese race is under threat, the perception that the ‘sons of the soil’ (as some Sinhalese have called themselves) are exploited by the other ethnic groups in Sri Lanka, and a vision of the enemy as ‘non-Sinhalese, non-Buddhist – the “Other,” who is an alien’.45 Jayawardena argues that Sinhala-Buddhist consciousness originally emerged as a base for the struggle for national independence from British colonial rule, but that it unfortunately contained elements of Sinhala chauvinism.46 She claims that the Sinhala-Buddhist ideology became dominant in the late 1970s among Sinhalese people: ‘its hegemonic nature was such that it covered all classes among the Sinhalese and all major political parties in the South. What is more, Sinhala-Buddhist hegemony became legitimised through its incorporation into the two Constitutions of 1972 and 1978’.47 Kapferer extends this argument to find a resemblance between post-colonial Sri Lanka and Nazi Germany in terms of the ‘practical implementation’ of ancient mythology, adding: [T]hose in power in Sri Lanka brought ancient stories of kings and princes into operation to legitimate the very contemporary and entirely modern claims to hegemony and exclusive national territorial right […] No matter how cynical might have been the use of ancient stories in modern nationalist rhetoric there is always the danger that leaders and followers can actually come to believe the stories that they tell […] Populations in Sri Lanka were vulnerable to such belief because the stories and particular interpretations of them were present in popular everyday ritual. 48

Stories have also been used to justify the government’s war efforts from a Buddhist perspective. Ancient chronicles, mostly written by Buddhist monks, were often cited to assert the superiority of Buddhists over nonBuddhist Tamils, and to rationalise the use of violence, which is denounced in Buddhist teaching. Indeed, in the Buddhist doctrinal tradition there is 45 Jayawardena, Ethnic and Class Conflict in Sri Lanka, p. 109. 46 Ibid., p. v. 47 Ibid., p. 101. 48 Kapferer, ‘From the crime of war to the crime of peace?’, p. 185.

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little evidence of intolerance, no justification for violence, and no conception even of just wars or holy wars. 49 Ahimsa (non-violence) is one of the key moral values within Buddhism, which condemns harming any living being. Dhammapada sums up: All tremble at violence, all fear death. Putting oneself in the place of another, one should not kill nor cause another to kill.50

In support of its peace efforts (before embarking on the third Eelam War), the Chandrika Bandaranaike government referred to various Buddhist canonical texts including Dhammapada and Cullavagga to argue that Buddhism is a non-violent religion that insists on racial harmony.51 However, there have been attempts to locate authorities in Buddhist texts to justify war in modern times. Cakkavatti Sihanada Sutta is cited by some Buddhists to legitimise war efforts, in particular by referring to the text that depicts a king committed to dharma (the path of righteousness), who nonetheless is flanked by a fourfold army (elephant, chariots, cavalry and infantry) – purportedly suggesting that even Buddha saw war as a reality of life for a king, and hence that war can be justified as a defence measure.52 Although canonical texts provide little or no references that justify war, stories in the chronicles provide richer sources. Mahavamsa, a fifth-century chronicle, extensively elaborates on the war between the Buddhist king Dutugemunu and the Hindu king Elara. The text depicts Dutugemunu going to war flanked by Buddhist monks, not for glory but to defend dhamma, and thereby to defend Buddhism. Later, when the victorious Dutugemunu regretted killing 60,000 enemies in the war, Arahant, a chief monk, reportedly consoled him by arguing that the killing of so many non-Buddhist enemies has fewer negative karmic consequences than the killing of one and a half Buddhists53: Only one and a half human beings have been slain here by thee, O lord of men. The one had come unto the (three) refuges, the other had taken 49 Bartholomeusz, In Defense of Dharma, pp. 10-11. 50 Acharya, The Dhammapada, verse 129, cited in Harris, ‘Buddhism in war’, p. 205. 51 Conversely, when the peace process was broken down, the government sought references from different Buddhist sources to justify the war. See Bartholomeusz, In Defense of Dharma, p. 34. 52 Ibid., p. 40. 53 Ibid., pp. 55-57.

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on himself the five precepts. Unbelievers and men of evil life were the rest, not more to be esteemed than beasts. But as for thee, thou wilt bring glory to the doctrine of the Buddha in manifold ways: therefore cast away care from thy heart, O ruler of men.54

While the government did not draw on these somewhat extreme interpretations of just war, one cannot deny the impact of these texts in forming the moral stance of pro-war Buddhist forces in the island. Understandably, Tamils in general had very little faith in receiving equitable treatment from the Sinhalese-dominated government, although one or two Tamils have been symbolically placed in the cabinets of the SLFP and UNP governments. Tamils in the north supported the SLFP and the UNP in many early elections, but in the last few decades they have mostly gathered around Tamil nationalist parties such as the Federal Party or the TULF. In the Vaddukoddai Resolution, the Tamils asserted that the successive Sinhalese governments since independence have used their political power to the detriment of Tamils by making ‘serious inroads into the territories of the former Tamil Kingdom by a system of planned and state-aided Sinhalese colonization […] calculated to make Tamils a minority in their own homeland’.55 By the mid-1980s, the leadership of the separatist struggle had gradually shifted to the hands of the Tamil Tigers, who adopted the emblem of a roaring Tiger of the ancient Tamil Kingdom, as if to counter the emblem of the Sinhalese rulers – a lion with an outstretched paw carrying a sword. Thus, Swamy notes that the two animals, the lion and the tiger, came to symbolise the ‘Sinhalese and Tamil psyches over the centuries and do so in modern times’.56 Jayawardena adds that sections of the Sinhalese community perceive the current ethnic confrontation as a continuation of ‘ancient animosities’ between the ‘historic enemies’.57 Following the emergence of the Tigers as the dominant militant group in the north, Tamil-Sinhalese animosity grew rapidly, fuelling revenge attacks on either side. Soon after the 1983 Black July incident, as an act of retaliation the Sri Lankan Army mowed down more than 60 Tamil civilians in the northern capital of Jaffna, while hundreds of Tamils were killed in the 54 Dhammapada, XXV.108-112, cited in Bartholomeusz, In Defense of Dharma, p. 56. The three refuges refer to the triple gems: (a) Buddha; (b) Dharma, the path of righteousness or the teaching of Buddha; and (c) Sangha, the followers of Buddha. 55 Wijewardana, How LTTE Lost the Eelam War, p. 320. 56 Swamy, Inside an Exclusive Mind, pp. 11-12. 57 Jayawardena, Ethnic and Class Conflict in Sri Lanka, p. 110.

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south by mobs. The Tamil Tigers retaliated in kind: in November 1984, they killed 70 Sinhalese civilians on Kent and Dollar farms on the border of the northern province. The Tigers actively cultivated hatred among the Tamil people against Sinhalese people and against Tamils engaged in political transactions with the Sinhalese government.58 Conversely, the Sinhalese army demonstrated its hatred by destroying the cemeteries of Tamil Tigers each time they captured a new territory.59 Although the Tamil Tigers adopted a rhetoric that generated hatred for the Sinhalese community and led to attacks on unarmed civilians, their agenda was not strictly to wage a tribal war against the Sinhalese, but rather to engage in war against the state and those who represent it – the members of the state’s institutions dominated by affluent Sinhalese. As this wealthy and influential Sinhalese group provided the leadership for the Sinhala-Buddhist hegemony,60 and its interests are represented by the Sinhalese majoritarian state, it could be argued that the Tamil Tigers’ terrorism is a rebellion against Sinhalese hegemony.61 Further to Butler’s assertion that the state has suspended the law by granting discretionary powers to its agents, it could also be argued that the Sinhalese hegemony has done so in order to protect its own survival and interests. Two pre­ cedents, set in 1971 and 1989, support this proposition. In each case, the state declared emergencies to crush the rebellions launched by left-wing Sinhalese groups who threatened the top layers of the Sinhalese-Buddhist hegemony.

Combating rebellions Ironically, it was not against the Tamils but against the Sinhalese that confessionary evidence was first used, when the People’s Liberation Front (JVP) emerged as the third Sinhalese political force in the nation. In 1964, the traditional left-wing parties formed a coalition with the SLFP, paving 58 De Silva, ‘Hatred and revenge killings’, pp. 15-27. 59 Haviland, ‘Sri Lanka builds army HQ on Tamil Tiger cemetery’. 60 For the purposes of this research, the membership of the hegemony is restricted to the affluent and influential segments of the Sinhalese-Buddhist community, not all Sinhalese communities. It should be noted that some Sinhalese groups such as small left-wing parties reject this hegemony. 61 Purnaka De Silva says: ‘Hegemony over the state power, traditionally exercised by upper echelons within the Sinhalese social formation’. See De Silva, ‘Sri Lanka futures beyond conflict’, p. 973.

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the way for the JVP to choose a revolutionary path based on a mixture of ‘Maoism, Stalinism, Guevarism and nativism or Sinhala chauvinism’.62 In 1971, thousands of young Sinhalese men and women flocked around the charismatic leader Rohana Wijeweera, and armed themselves to combat the poorly resourced police and the small ceremonial army of the island. Prime Minister Sirimavo Bandaranaike eventually crushed the insurgency, killing more than 10,00063 youth and arresting more. She enacted the Criminal Justice Commissions Act (CJC Act) in 1972, with retrospective powers to prosecute the JVP members using confessions given to police officers.64 According to the Minister of Justice of the time, 18,000 were taken into custody, 3908 were charged and 390 were sentenced.65 In the history of the use of confessions against dissenters to the state, a common trend can be seen: confessions have served to convey the official narratives of the state by affirming that the rebels have been subdued and the rebellion has been crushed. When the Sinhalese rebel leader Rohana Wijeweera was captured by the police at the end of the unsuccessful revolution of 1971, the police reportedly used all available methods including torture to force a confession from him under the provisions of the CJC Act. Gunaratna describes how Wijeweera’s confession was used to discredit the leadership of the rebellion and demoralise its membership: During the CJC trial, the lengthy ‘confession’ that Wijeweera made gave the impression that he was a coward. Wijeweera defended himself by stating that even though he was under stress, he did not give out information that would harm the movement […] Then the government managed to convince most of the main suspects of the CJC trial that Wijeweera was a fraud. By doing so they killed the popularity of the leader and to a large extent the movement.66

A.C. Alles, a commissioner who heard the cases against JVP members in the 1970s, revealed later that ‘many harrowing tales of police torture and third degree methods have been mentioned by several suspects in the course of their evidence’,67 admitting that many of these confessions could not have 62 Roberts, ‘Language and national identity’, pp. 75-102. 63 Whittaker, The Terrorism Reader, p. 81. 64 Section 11 (1) (d), Criminal Justice Commissions Act 1972, Sri Lanka. 65 Gunaratna, Lost Revolution, pp. 115-119. 66 Ibid., p. 121. 67 Alles, Insurgency, p. 213.

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been voluntary. Gunaratna provides an account of the circumstances that made the leader of the JVP confess: The inspector pulled out a revolver and threatened Wijeweera, ‘talk or die’. The police team and the government lawyer removed his glasses and his shirt. There was a typist too. Wijeweera was assaulted. They brought another five prominent activists to the same premises. Wijeweera was assaulted in front of the other activists (and their confessions were crosschecked). According to these other activists, Wijeweera talked in front of them. It was a detailed confession.68

During the time when the Criminal Justice Commissions were dissolved after concluding the matters of the ‘Sinhalese terrorists’, the Tamil Tigers were engaging in sporadic acts of terrorism in the northern capital of Jaffna. As the CJC Act was no longer enforceable to prosecute Tamil Tigers, the government resolved to enact new laws to suppress Tamil terrorism by allowing confessionary evidence against them. Hence, the Proscribing of Liberation Tigers of Tamil Eelam and Other Similar Organisations Act was passed in 1978, with a sunset clause of one year. This Act not only allowed confessions given to any police officer above the rank of an Assistant Superintendent of Police (ASP)69 to be admissible in court, but also equipped the Minister of Defence with the power to issue preventative detention70 orders effective up to one year. During the second reading of the Proscribing of Liberation Tigers of Tamil Eelam and other similar organisations Bill, Nallur (Jaffna District) MP M. Sivasithamparam questioned: ‘I am asking you whether it is necessary that in order to hunt down these murderers you should arm the Minister with these powers. Is it a confession on your part that your entire investigation machinery is powerless against a handful of people that you should clothe yourself with power of this nature?’71 When the UNP government realised 68 Gunaratna, Lost Revolution, pp. 111-112. 69 To avoid any confusion (in particularly citing judgements, where the term ‘ASP’ is used to describe officers of various ranks), the term ASP will be used to refer to the following three positions: (a) Assistant Superintendent of Police, (b) Superintendent of Police, and (c) Senior Superintendent of Police. 70 See section 9 (1) of PTA. ‘Preventative detention’ is a term commonly used in counterterrorism legislation across the world. For example, see the Australian Anti-Terrorism Act (No. 2) 2005 (Cth) which established Preventative Detention Orders (‘PDOs’) under division 105 of the Criminal Code. 71 Government of Sri Lanka, Hansard Reports, 19 May 1978, p. 2373.

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that it was failing to effectively combat the Tamil Tigers with this new law which had an expiry date, it introduced the Prevention of Terrorism (Temporary Provisions) Act (PTA). In doing so, it did not specify Tamils as the only offenders, perhaps with a view to also being able to combat its Sinhalese opponents such as the JVP, who had returned to democratic politics and achieved growing popularity. When the PTA was debated in the parliament during the second reading, SLFP MP Mr. Maithripala Senanayake warned: ‘admissibility of even an oral confession made to a police officer not only against the person who is alleged to have made such confession but also against any other person they may have implicated, will all constitute the solid groundwork for a police state’.72 Admitting the harsh truth, Minister Gamini Dissanayake replied: ‘People are murdered cold-blooded in broad daylight. Nobody in the North comes forward to give evidence’.73 Minister Dissanayake’s admission made the situation clear: all that the government wanted was evidence to prove the terrorists’ guilt, regardless of whether the evidence was truthful or gathered by lawful means. As predicted by MP Maithripala Senanayake, the laws allowed the establishment of a de facto ‘police state’ by giving excessive powers to the police to arrest and detain terrorist suspects. While some criticised the provisions of the PTA as ‘near dictatorial powers’ of the state to be used freely against anyone who openly challenged the government’s authority,74 others praised the new law, arguing that the Tigers and those who support them should not be treated as ‘law abiding citizens’.75 The Sri Lankan Government was now able to use the PTA against any type of ‘terrorist’ group, not only the Tamil Tigers; and so they used the law to crush the second Sinhalese insurgency led by the JVP in the late 1980s. As a consequence, hundreds of Sinhalese have been prosecuted on the basis of confessionary evidence.76 It is ironic that the PTA bill was moved by the Justice Minister, W. Devanayagam – a Tamil who was a symbolic appointment to the Sinhalese-dominated UNP cabinet. It is also ironic that many MPs who have argued with passion either for or against the law have since been killed by the Tamil Tigers, including Minister Gamini Dissanayake, Minister Lalith Athulathmudali,77 then 72 Government of Sri Lanka, Hansard Reports, 19 July 1979, pp. 1463-1464. 73 Ibid., p. 1530. 74 Asirwatham, ‘Reintegrating ex-PTA political prisoners’, p. 27. 75 Wickramasinghe, Under Attack, pp. 23-24. 76 Field interviews (July 2007). See De Silva, ‘Testing the venom of the PTA’, pp. 55-72. Also see Indrajith, ‘Conflict leads to revelation of party secrets’, p. 1. 77 It was disputed by many analysts whether Lalith Athulathmudali was killed by Tamil Tigers or the associates of the then government.

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Prime Minister Ranasinghe Premadasa, and TULF leader MP Appapillai Amirthalingam. Where does Sri Lanka’s war against terrorism fit in the global context? The civil war in Sri Lanka can best be understood as one of the ‘new wars’78 that have emerged in the post-Cold War era, which share certain features distinct from previous wars. This new type of war includes acts of terror and differentiates terrorism from both an ordinary crime and conventional warfare. It also includes the identif ication of a ‘presumed enemy’ and attempts to root out the danger by invading sovereign states.79 Kaldor defines this new war as a ‘new type’ of ‘organised violence’ or ‘low intensity conflict’ between states and organised groups. She notes that the new war needs to be understood in relation to the intensification of global connections or ‘globalisation’, and the revolutionising of military affairs through new military technologies.80 Kaldor submits that the new wars can be contrasted with earlier wars in terms of their goals, methods of warfare, and how they are financed.81 In the new war ‘identity politics’ play a major role because of the involvement of alienated diaspora groups that provide ideas, funds, and techniques. The methods of this warfare evade large battles and are instead aimed at gaining control over the population either by terrorising them or capturing their ‘hearts and minds’. This type of war is financed by the new ‘globalised war economy’, which depends on illegal taxation, hostage-taking, black market operations, and weapons and drug deals.82 Like the other ‘new wars’, the Tigers’ war was resourced by a global network of diaspora groups which generated financial resources, undertook international public relations initiatives, and sourced separatist political ideologies. On the other hand, the Tigers’ warfare was unique because of the scale of technology, military infrastructure and human power invested, and the level of commitment of the cadres supported by the Tigers’ liberationist ideologies. One peculiarity of the Tamil Tigers’ warfare was that, although the organisation’s supply network reached across the globe, its warfare remained territorially demarcated within the boundaries of South Asia, particularly the region between India and Sri Lanka. Further, this war was a sub-regional conflict that more or less avoided international headlines. 78 See how Kaldor introduces the concept of ‘new war’ in Kaldor, New and Old Wars. 79 Butler, Precarious Life, pp. 8-9. 80 Kaldor, New and Old Wars, pp. 1, 2, 4. 81 Ibid., p. 5. 82 Ibid., pp. 8-10.

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Based on this background context to the war discussed above, several important premises need be established in order to further this enquiry. First, it should be noted that Sri Lanka still largely maintains its colonial institutions, including the criminal justice system established by the British. Thus, the civil war needs to be understood in this post-colonial context, when we compare the island’s counter-terrorism measures with those adopted by modern Western democracies. Conversely, similar to many other South Asian nations, in Sri Lanka feudal practices have coexisted with its post-colonial democratic institutions, such as the democratic election of the descendants of feudal masters. Second, the political institutions of the island are dominated by the Sinhalese nationalist hegemony, which is accused of suppressing the minority Tamils. The agents of the hegemony are positioned at every layer of the state’s institutions, and this is more conspicuous in the police, the military and the judicial service. In response, Tamil Tigers have constructed their own counter-hegemony83 by securing popular support and repressing other Tamil groups. Third, the rebellion generated by the Tamil Tigers was peculiar in many ways because of its secular and fascist ideology, as well as its highly sophisticated military strategies. Therefore, the Tigers’ rebellion did not necessarily align with the model of Al-Qaida-type terrorist movements or Marxist guerrilla movements (this will be further explained in Chapter 2). Finally, it should be noted that the counter-terrorism measures adopted by the Sri Lankan Government, including the policing, intelligence gathering and altered criminal justice system, have been inferior to the modern systems of Western democracies, and the Sri Lankan institutions are poorly resourced and lack expertise. Further, the state’s resources were stretched in fighting conventional battles with the Tigers. Little was invested in implementing long-term preventive methods, including sophisticated intelligence management. The discussions presented in the following sections must be understood in light of these assumptions and the broader context of the war in Sri Lanka.

Confessions as evidence As mentioned earlier, the key proposition of this research is that the mass prosecution strategy imposed by the Sri Lankan Government on the Tamil 83 Purnaka De Silva discusses the ‘counter-hegemonic’ nature of the LTTE’s rebellion in two pieces of writing. See De Silva, ‘Sri Lanka futures beyond conflict’, p. 974. Also see De Silva, ‘Hatred and revenge killings’, p. 17.

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Tigers suppressed the rule of law, justice, and truth. International scholarship on the use of confessionary evidence in criminal justice systems covers many disciplines, including law, psychology, and criminology. In most of this previous work, confessions have been viewed sceptically and their credibility as evidence has been questioned. McConville and Baldwin argue that ‘confessions are one of the most common causes for wrongful imprisonment’.84 Dixon and Travis add, ‘false confessions have emerged as a significant source of miscarriage of justice which have been disclosed by the use of DNA analysis’.85 A great deal of research has enumerated evidence of the miscarriage of justice due to confessionary evidence in Australia, America, and Britain, particularly in relation to Northern Ireland’s counterterrorism laws.86 According to these studies, confessions can lead to the miscarriage of justice because of a number of factors. These include the following: (a) confessions are seen as narratives that can be constructed rather than recorded in the original voice of a suspect, (b) confessions can entrench illusions and reinforce the versions of the crime preferred by the police, and (c) confessions can come into existence as a result of police malpractice. Sharing this view, McConville et al. submit that the ‘facts’ are not elicited, they are created, and the ‘facts’ generated during an interrogation are the product of a complex process of interaction between suspect and police officer, much of which is directly traceable to the style and manner of police questioning. They add that the creation of such ‘facts’ is not an unusual or aberrant feature but is ‘absolutely endemic to police interrogation’. 87 Gudjonsson adds that police investigators believe that a certain degree of pressure, deception, persuasion and manipulation is essential to reveal the ‘truth’.88 To support these assertions, authors often refer to the interrogation manual of Inbau et al., which instructs that the suspect should be aided in their attempts to recall ‘the truth’ by introducing a hypothetical third person who engaged in the alleged crime and by providing descriptions in graphic detail of the victims’ and/or perpetrators’ actions.89

84 McConville and Baldwin, Courts, Prosecution, and Conviction, p. 160. 85 Dixon and Travis, Interrogating Images, p. 1. 86 See Greer, Supergrasses; Lutz et al., ‘British trials of Irish nationalist defendants’; and Bronitt, ‘Law enforcement immunities’, p. 225. 87 McConville et al., The Case for the Prosecution, p. 67. 88 Gudjonsson, The Psychology of Interrogations and Confessions, p. 7. 89 Henkel and Coffman, ‘Memory distortions’, summarising Inbau’s instructions to investigating officers (Inbau et al., Criminal Interrogations and Confessions, p. 573).

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When confessionary evidence is submitted in courts, the potential for the miscarriage of justice could be increased due to certain irregularities or imbalances. As Dixon explains: ‘the courts encouraged misconduct more directly […] While in theory the burden of proof should have favoured the defence, in practice the prosecution could secure the admissibility of confessionary evidence “with mechanical efficiency”’.90 McBarnet suggests that certain nexuses exist between the police, lawyers, and the court that could be detrimental to suspects from disadvantaged populations. Further, these institutions place the suspect or defendant in a ‘routine’ that is mystified by the language, bureaucracy, and processes of justice.91 In the context of this environment, confessions could cause serious damage to the defence of an innocent suspect. Thus, McConville et al. argue: ‘confessions are notoriously difficult to retract, and the perceived futility of future denials may induce in defendants a fatalistic and resigned outlook, the culmination of which may be a guilty plea’.92 Various scholars have attempted to lay down an exhaustive list of false confessions. Saul Kassin, a prominent researcher in forensic psychology, provides three categories of false confession.93 ‘Voluntary false confessions’ include confessions given by suspects who know that the content of their statement is false, and may be used, for example, to protect a friend, to satisfy a pathological need for fame, or for acceptance, recognition or selfpunishment. The second category, ‘coerced-complaint false confessions’, is usually given in order to escape an aversive investigation. The third type, ‘coerced-internalised false confessions’, are made by innocent people who are anxious, tired, confused and/or subjected to aggressive interrogation methods that make them believe that they have committed a crime.94 McConville et al. add a fourth category – the ‘coerced-passive confession’ – which includes ‘confessions when the process of questioning induces suspects to adopt the confession form without necessarily adopting or even understanding the substance of what has been accepted or adopted’.95 In these kinds of confessions, the suspect may internalise the confession or ‘adopt words which amount to a confession without even appreciating that they have made an admission’.96 90 Dixon and Travis, Interrogating Images, p. 9. 91 McBarnet, Conviction Law, p. 4. 92 McConville and Baldwin, Courts, Prosecution, and Conviction, p. 154. 93 Kassin, ‘True or false’, p. 178. 94 Ibid., p. 178. 95 McConville et al., The Case for the Prosecution, pp. 67-68. 96 Ibid., pp. 67-68.

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For the purposes of this research it is necessary to present a review of the legal literature in order to understand the provisions of the counterterrorism regime that validate confessionary evidence. The substantive and procedural aspects of criminal law in Sri Lanka were sourced from British common law during the colonial period. The jurists in Sri Lanka, therefore, continue to refer to British law and cite British cases to interpret domestic laws. To properly understand the alterations made to general criminal law by the creation of counter-terrorism laws, it is important to consider ‘ordinary law’ or general law. Two of the golden rules in the law of crimes are that the accused is presumed to be innocent until the charge is proven beyond reasonable doubt by the prosecution, and that an accused shall not be compelled to testify against him/herself or to confess guilt.97 The presumption of innocence has been adopted in the fundamental rights chapter of the Constitution of the Democratic, Socialist Republic of Sri Lanka, which states: ‘Every person shall be presumed innocent until he is proved guilty’.98 The rule that prohibits self-incrimination, however, originates from two sources: the Evidence Ordinance 1895 and the Code of Criminal Procedure 1979. Section 17 (2) of the Evidence Ordinance def ines a confession as ‘an admission made at any time by a person accused of an offence stating or suggesting the inference that he committed the offence’. Peiris clarifies: ‘an admission to be treated as a confessional statement must unequivocally establish guilt’.99 This definition significantly differs from British law, which has adopted a broader def inition, according to which any statement could be self-incriminating, even if the accused’s remarks were intended to be exculpatory at the time the statement was made.100 Thus, British law considers ‘mixed’ statements to be confessions, which means that the statement of the accused may consist of either admissions or denials.101 According to the judgement in Anandagoda,102 under Sri Lankan law the intention of the accused is immaterial. Hence, an admission that qualifies as a confession only requires in ‘intrinsic terms’ the inference that the offence in question was committed by the accused. Sri Lankan law considers statements that were elicited by questioning the accused 97 See Article 14 of the International Covenant on Civil and Political Rights and Berry v Jamaica, Communication NO 330/ 1988, UN. Doc. CCPR/C/50/D/330/ 1988 (1994). 98 Article 13 (5) of the Constitution of the Democratic, Socialist, Republic of Sri Lanka (1978). 99 Peiris, The Law of Evidence in Sri Lanka, p. 129. 100 Munday, Evidence, p. 457. 101 Ibid., p. 452. 102 [1960] 62 NLR 241.

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at the time of the arrest, as well as all statements recorded subsequently to be confessions.103 Sri Lankan law excludes confessions given to police officers as evidence, contrary to British law.104 Under ordinary criminal law, only confessions provided to magistrates can be used as a substantial piece of evidence in Sri Lanka.105 Section 25 (1) of the Evidence Ordinance prohibits the use of confessions made to a police officer: ‘No confession made to a police officer shall be proved as against a person accused of any offence’. Such a statement could not be used for any purpose except for corroborating the testimony of such a person in court; this means that the statement made by an accused can only be used to prove that s/he made a different statement at a different time.106 Peiris adds that ‘the previous statement can be used for the purpose of impeachment of credibility, only after the witness whose testimony is sought to be assailed, has given evidence’.107 This provision has been repeated in the Criminal Procedure Code. Section 110 (3) of the Code prohibits the use of a statement given to a police officer as a substantive piece of evidence: ‘A statement made by any person to a police officer in the course of any investigation may be used in accordance with the provisions of the Evidence Ordinance except for the purpose of corroborating the testimony of such person in court’. These provisions together provide the essence of the law of confessions in Sri Lanka which is that an incriminating admission made by a person to a police officer cannot be used as a substantial piece of evidence in a criminal matter. Thus, Peiris notes: ‘it has been the inveterate practice of the courts of Sri Lanka to regard the privilege against self-incrimination as a fundamental postulate in conformity with both the substantive and procedural laws’. 108 Peiris further clarifies that the reason for excluding confessions given to a police officer from a court hearing is that ‘even if in fact no improper pressure or coercion is brought to bear on the mind of the accused, the likelihood of this contingency is too great to justify, as a matter of policy, acquiescence in the 103 See Inspector of Police v Kanapathypillai ([1941] 42 NLR 368), Goonwardene ([1943] 44 NLR 189) and Hawadiya ([1920] 21 NLR 499). 104 Section 76 (1) of the British Police Criminal and Evidence Act 1984 provides that confessions given to police officers may be submitted as evidence. Also see Munday, Evidence, p. 460. 105 Section 26 (1) of the Evidence Ordinance. 106 Nevertheless, portions of statements relating to the discovery of fact, in terms of section 27 of the Evidence Ordinance and section 180 of the Penal Code, may legitimately be received in evidence. 107 Peiris, Criminal Procedure in Sri Lanka, p. 59. 108 Peiris, ‘Human rights and the system’, p. 125.

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reception in evidence as against the accused of a confession made in these circumtances’.109 In Thennakone Mudiyanselage Appuhamy,110 the Court of Criminal Appeal observed: ‘The Evidence Ordinance further protects an accused person by forbidding the proof of a confession even when made of his own free will to a police officer or when in the custody of a police officer except in the immediate presence of a Magistrate’. The law in relation to the right to silence of a suspect or an accused is ambiguous in Sri Lanka. Section 110 of the Code of Criminal Procedure provides that any police officer can orally interrogate any person supposed to be acquainted with the facts and circumstances of the case and the officer is permitted to reproduce in writing any statement made by that person; such person shall be bound to respond to the questions, except those that can incriminate him/her. This provision, however, needs to be interpreted alongside section 177 of the Penal Code, which states that refusing to answer the questions put by a public servant constitutes an offence.111 According to section 109 (02) of the Code of Criminal Procedure, a police officer can record the statement in any national language; however, if the witness cannot understand the recording language, the officer should arrange for an interpreter to be present.112 In most criminal justice systems confessions are judged using the ‘triple test’, consisting of three questions that determine: whether the confession is voluntary, whether it is legal and whether it is corroborated.113 According to section 76 (1) of the Police Criminal and Evidence Act of Britain, the prosecution is required to establish that the confession has not been obtained by ‘oppression’ or as a consequence of ‘things said or done’ which might render it unreliable.114 As it was held in Ibrahim v R,115 under British law, the mere fact that a confession was recorded while the suspect was in custody does not constitute ‘oppression’. The law in Sri Lanka in relation to ‘oppression’ has been elaborated in section 24 of the Evidence Ordinance: ‘a confession made by an accused person is irrelevant in a criminal proceeding if the making of the confession appears to the court to have been caused by any inducement, threat, or promise’.116 When 109 Peiris, The Law of Evidence in Sri Lanka, p. 162. 110 1959, 60 NLR 313. 111 Also see Sumanatilake, Torture, pp. 90-91. 112 Also see Thenabandu, Polisiya Saha Usaviya, p. 12. 113 Laudan, Truth, Error, and Criminal Law, p. 172. 114 Munday, Evidence, p. 460. 115 1914; A.C. 599, pp. 45, 48. 116 Section 24 of the Evidence Ordinance.

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the defence claims such oppression or illegality in the recording of the confession, the court declares a voir dire inquiry or ‘a trial within the trial’, where the prosecution needs to introduce evidence to prove that the confession was not obtained by forbidden means117 (inducement, threat or promise). What is crucial in judging such oppression in the court is the relevant burden of proof that the parties are required to discharge. The prosecution is not free of the requirement to prove beyond reasonable doubt that the confession was not extracted in an unlawful manner. The law does not impose the burden on the accused to adduce evidence to prove inducement, promise or threat. In this regard, Coomaraswamy says: The burden of proof on the prosecution never shifts to the accused and he is under no obligation to prove his innocence or adduce evidence in his defence or to make any statement. The burden of proving the essential ingredients of the offence is always on the prosecution until the termination of the trial. A lesser burden may, in the course of a trial, be cast on an accused who pleads a general or special exception […] But this does not mean that the legal or overall burden on the prosecution has at any time shifted to the accused.118

The discussion now proceeds to a consideration of how the substantive and procedural laws related to confessions have been altered by the introduction of counter-terrorism laws in Sri Lanka. The Sri Lankan counter-terrorism laws include the PTA and the Emergency Regulations, which from time to time are introduced and amended by the President under the Public Security Ordinance 1956 of Sri Lanka. The Public Security Ordinance grants power to the President to proclaim a state of emergency. The Emergency Regulations override all existing laws except the Constitution itself.119 The President’s proclamation has immediate effect but must be approved by the parliament within 14 days. The laws specify that these regulations shall not be questioned by any court 120; however, the administrative decisions made under these regulations have been 117 Munday, Evidence, p. 460. 118 Coomaraswamy, The Law of Evidence, p. 272. However, in British law, as Murphy points out, it is not that uncommon for the accused to bear the legal burden of proof; for example, the accused of a murder case has the burden of proof to explain the possession of a weapon: Murphy, Murphy on Evidence, p. 89. 119 See Article 15 (2) of the Constitution of the Democratic, Socialist, Republic of Sri Lanka (1978). 120 Goodhart et al., Judicial Independence in Sri Lanka, p. 22.

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reversed by the Supreme Court, granting remedies for fundamental rights applications made under section 126 of the Constitution. Neither of these laws (the PTA or the Emergency Regulations) defines terrorism; instead, they enlist offences such as failure to provide information on terrorist activities and conspiracy against the state.121 Although the right to freedom from torture is not altered by these laws, several other civil rights, including freedom from arbitrary arrest and detention, can be restricted. Most importantly, the counter-terrorism laws grant power to the Secretary of the Ministry of Defence to issue detention orders for the purposes of preventative detention, detention following arrest and rehabilitation. These detention orders allow the police to detain suspects for a period of up to one year without producing the suspect to a court, and can be renewed at any time, thus effectively permitting the police to detain suspects indefinitely.122 Further, the laws allow the police to dispose of the bodies of suspects without post-mortem inquiries. Apart from introducing new offences, the counter-terrorism laws introduced two significant alterations to the general law of evidence in Sri Lanka. First, these laws allow a confession given to a police officer above the rank of an ASP to be submitted as a substantial piece of evidence. Section 60 (1) of the Emergency Regulations issued by the President on 3 May 2000 provides: At the trial of any person and offence under an emergency regulation a statement made by such person whether or not it amounts to a confession and whether or not such person was in the custody of a police officer at the time the statement was made and whether or not such statement was made in the immediate presence of a Magistrate may be proved as against such person, if, but only if, such statement is not irrelevant under section 24 of the Evidence Ordinance: Provided, however, that no such statement shall be proved against such person if such statement was made to a police officer below the rank of Assistant Superintendent of Police.123

Similarly, section 16 (1) of the PTA provides: Notwithstanding the provisions of any other law, where any person is charged with any offence under this Act, any statement made by such 121 See the definition of terrorism; ‘the threat to use of seemingly random violence against innocents for political ends by a non-state actor’ as provided by Cronin, ‘Behind the curve’, p. 33. 122 See Goodhart et al., Judicial Independence in Sri Lanka, p. 24. 123 Emergency Regulations (3 May 2000) of Sri Lanka.

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person at any time whether – (a) it amounts to a confession or not; (b) made orally or reduced to writing; (c) such person was or was not in custody or presence of a police officer; (d) made in the course of investigation or not; (e) it was or was not wholly or partly in answer to any question, may be proved as against such person if such statement is not irrelevant under section 24 of the Evidence Ordinance: Provided, however, that no such statement shall be proved as against such person if such statement was made to a police officer below the rank of an Assistant Superintendent.124

These laws, however, do require the element of voluntariness and prohibit the admission of confessions that are recorded under inducement, threat or promise, as provided by section 24 of the Evidence Ordinance. The second alteration made to the law of evidence by counter-terrorism laws was the provision in relation to the burden of proof. Section 60 (3) of the Emergency Regulations of 3 May 2000 provides that the burden of proving that any statement referred to paragraph 60 (1) or (2) is irrelevant under section 24 of the Evidence Ordinance shall be on the person asserting it to be irrelevant. The same provision is repeated in section 16 (2) of the PTA. These provisions effectively place the burden on the accused to prove his/her innocence. This provision significantly contradicts one of the fundamental civil liberties and dramatically affects the fate of terrorist suspects: the failure to produce evidence to prove their innocence could lead to a guilty verdict as would not be the case in an ordinary criminal trial. It is important to note that these provisions combined – the provisions that altered general criminal law by (a) introducing indefinite detention, (b) allowing confessions recorded by the police officers, and (c) transferring the burden of proof to the accused to disprove the legality of the confession – contradict the norms that are central to civil liberties and international human rights standards. When the PTA Bill was moved in the parliament on 19 July 1979, the Supreme Court of Sri Lanka resolved that the Bill required a special two-thirds majority to be passed by the House because the court was of the opinion that the Bill was ‘inconsistent prima facie’ with certain articles of the fundamental rights chapter in the Constitution.125 This means that when the parliament passed the PTA, it was passed in opposition to the existing fundamental rights framework of the Constitution, thus 124 Section 16 (1) of PTA. 125 Article 4 (1) [c] and 11 of the Constitution (Government of Sri Lanka, Hansard Reports, 21 May 1979, p. 81).

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effectively amending the Constitution with a two-thirds majority. By these amendments to the law, the domestic courts were compelled to justify indefinite detention and any associated violence against civil liberties126; however, certain international institutions, particularly the United Nation’s Human Rights Committee in relation to Singarasa v Sri Lanka, criticised these laws as they breached international human rights law.127 Chapter 5 revisits these legal materials in detail, answering the question: What are the possibilities and limits of a fair hearing for Tigers from the judiciary in Sri Lanka? Further, the fairness of the judicial hearing process in Sri Lanka will be investigated adopting international human rights standards and the principles of criminal law as benchmarks. Sri Lanka is not alone in deed in adopting confessionary evidence to combat terrorism. Neighbouring India and Pakistan also have laws enabling the police to submit confessionary evidence as substantive pieces of evidence against terrorist suspects.128 Similar to Sri Lanka’s counter-terrorism provisions, the Protection of Pakistan Act 2014 indirectly passes the burden of proof to the suspect, enacting that, when ‘reasonable evidence’ exists against the suspect, he is ‘presumed’ to be engaged in waging war or insurrection against Pakistan, unless he establishes his non-involvement in the offence.129 These two countries have also been former British colonies like Sri Lanka, where confessions recorded by police officers were not allowed to be submitted as substantive pieces of evidence under the ordinary criminal law, probably because colonial lawmakers foresaw the dangers of allowing such measures in semi-feudal or tribal societies where the boundaries between investigation and punishment are often blurred. Presenting the minority view of Kartar Singh, in which the terrorist suspect unsuccessfully challenged the validity of his confession taken under India’s Prevention of Terrorism Act, Sahai J cautioned: Giving power to a police officer to record confession may be in line with what is being done in England and America. But that requires a change in the outlook by the police. Before doing so the police force by education and training has to be made aware of their duties and responsibilities […]

126 See Karmegam v Jansz and Others (25 SC 100/87 minutes 28 January 1988) and Kumaranatunga v Samarasinghe ([1983] 2 FRD 347). Also see Amerasinghe, Our Fundamental Rights. 127 Ganeshalingam, ‘Back to emergency’, p. 4. 128 Section 21 H of Pakistan’s Anti Terrorism Act 1997 and section 32 of India’s Prevention of Terrorism Act 2002. 129 See section 15 of Protection of Pakistan Act 2014. It should be noted that a similar provision does not appear in the legislation passed by the Central Government of India.

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The defect lies not in the personnel but in the culture […] The cultural climate was not conducive for such drastic change.130

Unlike Sri Lanka, both India and Pakistan have provincial governments with varying degrees of autonomy including policing powers, thus making the counter-terrorism regime even murkier to navigate. Indian state governments have enacted nearly eighteen pieces of legislation to combat terrorism131 which coexist alongside the legislation of the Central Government. The deeply conservative and largely autonomous tribal belt of Pakistan is exempt from enforcement of the Criminal Procedure Code and the Penal Code, not to mention the Anti-Terrorism Act (ATA); hence, as there are no police stations, courts or judges, the counter-terrorism measures in these areas are administered under the ‘draconian’ Frontier Crimes Regulation, an administrative system devised by the British after occupying the tribal belt in the middle of the nineteenth century.132 Similarly, to combat the insurgency in Jammu and Kashmir the Central Government of India has enforced the Special Powers Act 1990, which allows the Central Government to vaguely define a state as a ‘disturbed area’ and thereby grant extraordinary powers to the armed forces to arrest suspects without a warrant, fire upon people or even cause death, if an officer believes it is necessary for the maintenance of public order.133 These legislative provisions appear to have provided a pretext to apply militarisation strategies which penalise segments of the population, essentially excluding them from the protection of the normal justice system.

The state of exception Many authors have noted an analogy between the political norms that gave rise to the German dictatorship during the Second World War and the adaptation of counter-terrorism measures by modern democratic states in the West, albeit acknowledging the vast differences between the two eras.134 Analysing the narrative symmetries between the ‘war against terrorism’ and the state of exception, Munster claims that the war against terrorism shifted 130 Kartar Singh v State of Punjab (1994) 3 SCC, p. 262. 131 Manoharan, Trojan Horses?, p. 14. 132 Tajik, ‘Counterterrorism effort’, p. 111. 133 Duschinski, ‘Destiny effects’, p. 701. 134 See Munster, ‘The war on terrorism’, pp. 142-143. Also see De Mel, Militarizing Sri Lanka, and Korf, ‘Who is the rogue?’.

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the paradigms of the original discourse of the state of exception, moving from ‘defence’ to ‘prevention’ or from ‘deterrence’ to ‘risk management’.135 The author adds: ‘“war” on terrorism takes place largely outside the framework of domestic or international law and seems to consolidate something akin to a permanent state of exception, in which distinctions such as […] rule/exception are blurred to the point of indistinction’.136 Such writings have nourished the contemporary debate on the validity, efficacy, and ethics of the counter-terrorism measures being adopted by states across the globe. Therefore, establishing a link between the state of exception and the Sri Lankan experience of war against terrorism would help us identify a reference point that is common to the West and South Asia. Materials on the state of exception will become important in Chapter 4, which will carry answers to the question: How have the state’s agents enforced counter-terrorism measures among the suspect population, and how do such measures impact on individual suspects? Schmitt argues that the sovereign ‘awakes’ when a normal situation becomes an exception, and the sovereign must decide whether to declare a state of exception to deal with an extreme emergency and eliminate its causes.137 He adds that the decision of declaring the state of exception is based on the ‘legal norm’; however, the sovereign’s authority proves that ‘to produce law it need not be based on law’. 138 This juridico-political definition (based on the theory of sovereignty) of the state of exception is seen as paradoxical because although the sovereign who declares the state of exception ‘stands outside the normally valid legal system, he nevertheless belongs to it’139 . Critiquing the Schmittian concept of the state of exception, Agamben asserts that jurists of public law seem to disregard Schmittian theory because it does not represent a ‘genuine juridical problem’ as it is situated in an ‘ambiguous, uncertain, borderline fringe, at the intersection of the legal and political’. 140 Redef ining the state of exception, Agamben submits that the ‘force of law’ has the ‘generic sense of efficacy’ – to command, to forbid, to allow or to punish, as established in Roman law. Thus, he argues that ‘law’ must be separated from the ‘force of law’.141 He adds that the state of exception is ‘an anomic 135 Munster, ‘The war on terrorism’, p. 12. 136 Ibid., p. 142. 137 Schmitt, Political Theology, pp. xviii, 7. 138 Ibid., p. 13. 139 Ibid., p. 7. 140 Agamben, State of Exception, p. 1. 141 Ibid., p. 38.

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space’ in which what is at stake is a ‘force of law without law’.142 Agamben claims that the state of exception bears close links to insurrections and civil wars: modern totalitarianism is def ined by means of the state of exception, eliminating ‘not only political adversaries but entire categories of citizens who for some reason cannot be integrated into the political system’.143 He notes that the provisions of the United States’s USA PATRIOT ACT of 2001 established a ‘legally unnameable, unclassifiable being’, and allowed indef inite detention that resulted in detainees being entirely removed from the law and judicial oversight.144 He asserts: ‘The state of exception is not a special kind of law (like the law of war); rather, […] it is a suspension of the judicial order itself’.145 The other most significant contribution made by Agamben to the discussion on the theory of the state of exception is his concept of ‘bare life’ – the human without the rights and legal status of a citizen or ‘a pure simple corpus’ – based on homo sacer, a figure in archaic Roman law.146 Here he establishes symmetries between the state of exception and bare life: ‘Bare life remains included in politics in the form of the exception, that is, as something that is included solely through an exclusion’.147 He also explores the connections between the state of exception and locked-up spaces such as Nazi concentration camps: ‘The camp is the space that is opened when the state of exception begins to become the rule’.148 He adds that in camps, the ‘power [of the sovereign] confronts nothing but pure life’.149 Most importantly, he argues that modern camps such as immigration detention centres are born out of the state of exception, and thus bare life continues to exist in such places in the present time.150

142 Ibid., p. 39. 143 Ibid., pp. 2-3. 144 Ibid., p. 3. 145 Ibid., p. 3. 146 The concept of ‘bare life’ falls within the paradigm of ‘biopolitics’ as presented by Foucault, who remodelled the norm of power by focusing on the human body – human species becoming ‘the object of a political strategy’ or ‘general strategy of power’. See Foucault, Security, Territory, Population. However, Agamben distinguishes himself from Foucault’s model for the norm of power, critiquing that there is ‘a hidden point of intersection’ between the model of the theory of sovereignty and the model of biopolitics proposed by Foucault; thus, Agamben attempts to fill the gap with the concept of bare life. See Agamben, Homo Sacer, p. 11. 147 Ibid., p. 11. 148 Ibid., pp. 168-169. 149 Ibid., p. 171. 150 Ibid., p. 174.

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In analysing the Sri Lankan experience of counter-terrorism measures, it is important to establish whether such measures suspended the judicial order and created a state of exception within a context like that described by Schmitt and Agamben. It should be noted that during the 30-year civil war in Sri Lanka, the state continued to run its democratic institutions by holding elections, conducting public court hearings, and to a certain degree, protecting the civil liberties of its citizens. Paradoxically, the state and its agents were at the same time involved in extra-judicial executions and aerial bombings of civilian targets. The nation has been ruled under a state of emergency since the mid-1970s, with some short, sporadic intermissions. Agamben suggests that one of the essential characteristics of the state of exception is the ‘provisional abolition of the distinction’ among legislative, executive, and judicial powers,151 which can be clearly observed in the bureaucratised counter-terrorism measures in Sri Lanka discussed earlier. The literature on the state of exception concerning counter-terrorism measures also includes writings that analyse both the colonial and postcolonial contexts. Lloyd published a remarkable paper on the British colonial rulers’ ‘anti-Thuggee campaign’, which consisted of a combination of legal and military exercises aimed at suppressing Thuggees – a community of outlaws who earned their livelihood from organised robberies and abductions that sometimes resulted in murder.152 The anti-Thuggee campaign of the colonial rulers included the introduction of special legislation as the Thuggees were perceived as ‘extraordinary criminal groups’ because of their ‘alleged secrecy’, ‘fundamental irrationality’, and ‘merciless depredations’. Lloyd explains that the suppression of the ‘extraordinary association’ of Thuggees was accomplished by similarly extraordinary police and judicial procedures, defended as a ‘temporary departure from normal legal values’. This is because the Thuggees were seen as ‘criminal wretches’ ‘at war’ with the government, and therefore a group that had forfeited any right to the ‘benefit of its law’.153 The campaign included the establishment of a special institution, the Thuggee Department, and allowed the indefinite detention of suspects and confessions as sole evidence, and eased the burden of proof of the prosecutor.154 The colonial government’s draconian measures to suppress Thuggees seem to have been almost identically replicated decades later in many counter-terrorism regimes, including in post-colonial 151 Agamben, State of Exception, p. 7. 152 Lloyd, ‘Thuggee, marginality and the state effect in colonial India’. 153 Ibid., pp. 201, 202, 209. 154 Ibid., pp. 208-219.

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India and Sri Lanka. Lloyd argues that ‘these laws gave legal form to that which cannot have legal form – a Schmittian “state of exception”; a form of sovereign authority precisely defined by the ability to decide whether or not “the law” applied to certain individuals’. Lloyd adds that for Agamben this exception ‘marks the metaphysical threshold between the political life of the human and the “bare life” (or mere existence) of the naked ape’ based on the sovereign’s decision to ‘divide and abandon the “exceptional” from the “normal”’.155 Thus, while Lloyd establishes a link between the outlawed ‘extraordinary’ criminal and the bare life created by the state of exception, he argues that the state of exception (in relation to the antiThuggee campaign) is in fact a colonial project aimed at enforcing power over the state’s subjects. In doing so, Lloyd provides us with an opportunity to consider the norms of the state of exception in shaping our discussion on the counter-terrorism regime, in the context of feudal and colonial factors in Sri Lanka.156 The idea of the ‘state of exception’ has been a reference point for many authors writing about the conflict in Sri Lanka. Drawing attention to Derrida’s concept of the ‘rogue’, Korf provides an interesting analysis: ‘political discourse in Sri Lanka runs through waves of “ethnicised” antagonism, even renewed hatred. These discourses create the ethnic other as “rogue” in the Derridean sense, an outlaw, someone whose aspirations stand outside the law’.157 He argues that ‘“rogue others” are needed to legitimise a state of exception where force stands out-of-the-law, but needs to be justif ied as being within the law, since the state of exception is part of a project leading to an ideal state-to-come […] a “pure” SinhaleseBuddhist state’.158 Similarly, De Mel refers to the state of exception in her discussion on Sri Lanka’s militarised society, noting that the sovereign decides the threshold between good life and bare life, schematising a ‘logical figure of the enemy’. Drawing an interesting link between bare life and female Tiger suicide bombers, she argues: ‘the suicide bomber [suspected or real] is deemed by the sovereign for the sake of the nation to have transgressed, outside of morality and so, fit to be outlawed. The normative state of exceptionality permits that anything can be done to her from slander to killing because in this sovereign sphere […] In this 155 Ibid., p. 220. 156 See the previous discussion of Sinhalese hegemony based on Jayawardena’s writings: Jayawardena, Ethnic and Class Conflict in Sri Lanka, p. 101. Also see the upcoming discussion on the feudal features of South Asian police forces. 157 Korf, ‘Who is the rogue?’, p. 281. 158 Ibid., p. 281.

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state the body of the female suicide bomber becomes the site of bare life itself, stripped of rights, constitutive of a compromised humanity’.159 While these previous research materials on the state of exception and bare life help constitute an analytical framework to understand various aspects of the counter-terrorism regime, it is important to present empirical research that links the realities on the ground to the theoretical framework. Sumanatilake notes that in Sri Lanka: ‘the questioning of suspects is usually an ordeal, during which ill treatment in the form of verbal and/or physical abuse might even be meted out’.160 Somasundaram adds that the PTA and Emergency Regulations provide a ready context for torture in particularly allowing for the disposal of bodies without inquest or post-mortem,161 further indicating that the counter-terrorism measures do indeed give rise to ‘bare life’.162 The studies cited above establish two oppressive norms of the state of exception: the reappearance of bare life, and the increased appropriation of punitive practices that overtly inflict physical pain. Foucault provides an elaborate account of the transformation of the penal regime from the medieval era to our modern times. He argues that by the end of the eighteenth century, ‘the gloomy festival of punishment’ was dying out, leaving a ‘legal or administrative practice’ in its place, such that punishment became a more hidden part of the penal process: an ‘abstract consciousness’ of ‘inevitability’ or a ‘certainty of being punished’.163 He adds that, following these changes, the conviction itself came to mark the offender (rather than the tortured or torn body) with an ‘unequivocally negative sign’, and the publicity shifted from the ceremonial execution to the trial.164 In his later works on ‘bio politics’, in which he explores how human life becomes ‘the object of a political strategy’ or ‘general strategy of power’,165 Foucault revisits the state’s desire to achieve ‘efficiency’ in its punitive regime. He asserts that biopolitical strategies entail the idea that the state fully knows the ‘truth’ concerning its citizens, including what takes place within its territory and which individuals will comprise the population. These strategies are based on the idea that the nation is ‘entitled to its own knowledge’ or the idea that a society must be ‘transparent to itself’ and must be the ‘possessor 159 De Mel, Militarizing Sri Lanka, p. 245. 160 Sumanatilake, Torture, p. 96. 161 Somasundaram, Scarred Minds, p. 260. 162 See the discussion in Chapter 4. 163 Foucault, Discipline and Punish, p. 9. 164 Ibid., p. 9. 165 Foucault, Security, Territory, Population, p. 1.

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of its own truth’.166 Foucault adds that this new form of government is based on the rationale of ‘self-restraining liberalism’ – that is, for the state to ‘govern less’ for ‘maximum efficiency’, rather than exerting physical control over and punitive practices onto its people. However, according to the post-9/11 reports emerging from prisons and detention centres around the globe, this transformation, in which the infliction of pain is replaced by an ‘economy of suspended rights’,167 seems to have been reversed under the conditions of the state of exception and the consequent reappearance of bare life. Nonetheless, Foucault’s penal theory can be continuously applied, under the premise that progressive elements of the modern punitive regime may be reversed during a state of exception in order for the state to inflict physical pain on those excluded from the protections of ordinary law. Further, Foucault’s account of the medieval punitive regime – including punitive interrogation methods, the sovereign’s desire for vengeance and marking the condemned body through torture – finds some parallel with the punitive practices of the present, particularly at sites that manifest the state of exception, such as detention centres for Tamil Tigers in modern Sri Lanka. This is not to suggest that Foucault’s penal theory can be applied unproblematically to countries like Sri Lanka. The South Asian subcontinent and this island-nation have not followed the same path to modernity as have the states of Europe, yet Foucault squarely based his analysis on the evolution of European society. Identifying this problem, Evans notes that there have been concerns about the validity of applying Foucault’s theories universally to contemporary political contexts around the globe. In relation to applying ‘biopolitical’ analysis to colonialism, Foucault seems to have attended to the ‘colonial heartland’ rather than overseas domains.168 Thus, scholars have offered alternative readings of penal theory that have been more meaningful in non-European contexts. The subaltern historian Guha, for instance, argues that the authority of the colonial state (in India) was structured as an ‘autocracy’ and did not recognise the rule of law: ‘power simply stood for a series of inequalities between the rulers and ruled as well as between classes, strata, and individuals’.169 According to Guha, the British tradition of ‘order’ was enforced in colonial India, but it incorporated pre-existing ‘semi-feudal’ practices (such as 166 Ibid., p. 357. 167 Foucault, Discipline and Punish, p. 10. 168 Evans, ‘Foucault’s legacy’, pp. 413-414. 169 Guha, Dominance without Hegemony, p. 20.

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caste and religious sanctions) into the coercive powers of the state, and this composite idiom of power was embodied in the idea of Danda.170 He argues that in the colonial period, the state’s power to exercise and impose Danda served to legitimise the coercive authority of the dominant over the subordinate.171 While Danda enables us to better understand penal regimes in semi-feudal colonial societies, Western penal theories like Foucauldian ‘panopticism’ (a disciplinary modality of power based on the ‘subtle calculated technology of subjection’ of surveillance) or biopolitics can still inform our discussion and help us to grasp the subtleties and complexities of modernising post-colonial societies in South Asia. For example, researching Peshwas (the traditional Brahmin rulers of the Indian state Maharashtra) under British colonial rule, Kaplan has argued that Peshwas were panopticists in Foucauldian terms, although this feudal society had not yet undergone the same transformation that led to the European states adopting panopticism to replace the disciplinary model based on public punishment.172 Further, Kaplan states that ‘we need not imagine that there is only one single form of panopticism’,173 noting that Foucauldian theories may require reinterpretation in colonial and post-colonial contexts. This discussion will be continued in Chapter 4, in which these disciplinary models and punitive theories are applied to the Sri Lankan state’s war against terrorism. The discussion now turns to the subject of terrorism. Terrorism is distinguished from a ‘just war’ on the basis of its noncompliance with the following criteria (of a just war)174: legitimate authority to fight (as opposed to revolutionary violence), causa justa or just cause (which prohibits the intentional killing of innocent civilians), right intention, proportionality (that the war does not create more ‘mischief’), prospects of victory, and the last resort (ultima ratio).175 Terrorism does not meet these criteria for war; hence, as Steinhoff explains, ‘[a]ccording to common sense, terrorism is the paradigm of senseless, or at the very least, of downright illegitimate

170 The term Danda can be roughly translated as ‘punishment’. See Guha, Dominance without Hegemony, p. 25. 171 Ibid., p. 30. 172 Kaplan, ‘Panopticon in Poona’, 88. 173 Ibid., p. 94. 174 Steinhoff, On the Ethics of War and Terrorism, pp. 2-33. 175 The origin of just war theory can be traced to some of the Catholic Church fathers such as Thomas Aquinas and Augustine, who recognised a ‘certain war’ ( jus ad bellum) from the legitimacy of the war ( jus in bello). See Steinhoff, On the Ethics of War and Terrorism, p. 2.

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and detestable violence’.176 A terrorist act is designed to have an effect on a wider audience than the immediate victim and thereby aims to instil fear in a whole population.177 Accordingly, terrorism is defined as ‘the threat to use seemingly random violence against innocents for political ends by a non-state actor’.178 To achieve these ends, modern terrorist groups have increasingly adopted the strategy of suicide terrorism targeted at civilians and important enemy figures. The rhetoric of major suicide terrorist groups reflects the ‘logic of coercive punishment’179 – the punishment of people who may not have any direct connection to the terrorists’ enemies. Bloom underlines the conditions that lead terrorists to adopt such punitive strategies: ‘under conditions of hyper segregation, ideas of otherness are easier to promote by the insurgents. It becomes simpler to dehumanise people on the other side and perceive them as legitimate targets and appropriate for suicidal attack’.180 Reuter appears to agree with this, noting that one of the key elements essential to the success of suicide terrorism is the ‘preexistence of an enemy ripe for demonization’.181 Understandably, the terrorist has a completely different justification for suicide terrorism, based on a discourse that bears no resemblance to ‘just war’ theory. A propaganda video clip posted on YouTube by the Tamil Tigers shows the following: At night a group of Tigers prepare a boat, filling it with explosives. They show no anxiety about what they are planning. The next morning the chosen Tiger, disguised as a fisherman, bids farewell to his comrades and begins to sail while looking for his enemies. It becomes clear that he is on a suicide mission. Meanwhile the Sinhalese Navy arrives in a ship to arrest the Tamil fisherman in the shallow sea. The navy orders the disguised Tiger to stop his boat. The Tiger ponders for a minute and weighs up two options – to attack the navy ship loaded with innocent Tamil fishermen arrested on suspicion or to explode his boat, thus saving the lives of the fishermen. The Tiger blasts himself and saves the Tamil fishermen on the navy boat. The subtitles float on the screen saying, ‘This is a true story’.182 176 Steinhoff, On the Ethics of War and Terrorism, p. 1. 177 Whittaker, The Terrorism Reader, p. 9. 178 Cronin, ‘Behind the curve’, p. 33. 179 Pape, Dying to Win, p. 30. 180 Bloom, Dying to Kill, p. 79. 181 Reuter, My Life Is a Weapon, p. 13. 182 Eelam Tamileelam.

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The values of the terrorist are based on an entirely different paradigm that does not necessarily align with the concept of a ‘just war’. One of the key attributes of this paradigm is altruism. The terrorist perceives her/himself to be essentially an altruist: ‘he believes that he is serving a “good” cause designed to achieve a greater good for a wider constituency – whether real or imagined’.183 The Tamil Tigers’ rhetoric around martyrdom constantly refers to the altruistic basis of their rebellion. According to Schalk, the Tigers’ interpretation of martyrdom is based in the concept of tiyaki, ‘one who abandons’, which Schalk claims does not exactly correspond to the meaning of ‘martyr’ in the Judeo-Christian tradition.184 Consideration of the terrorist’s self-identified role is important in a project that examines terrorists’ confessions in relation to notions of law, justice, and truth. Moreover, an insight into the military subculture of the Tamil Tigers may provide evidence either for or against the validity their confessions. For this reason, the second chapter of this research is dedicated to exploring the Tigers’ military subculture. It questions what attributes of this subculture either support or dispute the phenomenon of Tigers confessing en masse. To understand this war from the Tigers’ point of view, a range of materials are reviewed, including journals, speeches, and feature and documentary videos, which essentially contradict the brutal image of the terrorist portrayed by the Sinhalese media, instead glorifying their rebellion. These narratives of the Tamil Tigers unarguably provide interesting accounts that contrast with the official narratives of the Sinhalese majoritarian state – that latter which are primarily confessionary narratives that undermine the validity of the Tigers’ rebellion. These contradictions complicate the determination of the truth of these narratives so that we must ask: Who is telling the truth – the state or the terrorist?

Finding the ‘truth’ about confessions Where is the truth located in this legal war? In answer, Wooten argues: ‘while a government can tolerate the circulation of a lot of untruths (indeed it may welcome much of it and declare it to be the “truth”), it is usually much more concerned to maintain law and order’.185 Sanders and Young note that since the adversarial legal system is concerned more with legal truth 183 Whittaker, The Terrorism Reader, p. 9. 184 Schalk, ‘Resistance and martyrdom’. 185 Wootten, ‘Conflicting imperatives’, p. 17.

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than with ‘actual truth’, the police are also more concerned with the legal truth, sometimes ‘creating’ facts that bear little relation to any reality the suspect might recognise.186 These authors appear to agree on the distinction between the truth and facts, each having distinct criteria of deduction, thus recognising the existence of multiple realities or ‘parallel versions’ of ‘realities’ in the narratives adopted in criminal law procedures.187 Gibbons says: ‘In the Common Law system there are often two conflicting accounts of the secondary reality [the reality to be established in the court] and these constructions, somewhat naively, are often referred to as the “facts” of the case’.188 Wooten concludes that evidence, in whatever form it is presented, is not ‘an open window’ that gives ‘access to reality’, and may indeed be ‘a wall’ that precludes access to reality.189 There have been many attempts by scholars and practitioners alike to assess the notion of truth both within and outside the criminal justice system. The Truth Commission constitutes one such system that has been successfully adopted in several countries, but such successes are rare and no precedence has been set in terms of the assessment of confessionary evidence in these commissions. Other systems include deception detection tools used within forensic linguistics, which could be placed within, or at least in close relation to, the domain of law. Scholars in deception detection have attempted to theorise the field of text analysis by submitting a number of methods. Among these methods, Statement Validity Analysis seems to be one of the most sophisticated instruments. It includes a comprehensive procedure for generating and testing hypotheses about the source of a given statement.190 There have also been numerous attempts to distinguish law from ‘truth’ in the domains of philosophy and legal semiotics. Jackson provides three views of truth in the law: the semiotic view, the pragmatic view, and the legal view.191 He argues that it is not possible to demonstrate ‘truth in objective terms’ in the adversarial system and that the court is concerned with the ‘plausibility’ of the story as told.192

186 Sanders and Young, ‘From suspect to trial’, p. 1056. 187 Gibbons, Forensic Linguistics, p. 78. 188 Ibid., p. 149. 189 Wootten, ‘Conflicting imperatives’, p. 23 (citing Ginzburg, Checking the Evidence: The Judge and the Historian). 190 Kohnken, ‘Statement validity analysis’, and also see Adams and Javis, ‘Indicators of veracity and deception’, pp. 3-10. 191 Jackson, ‘Truth or proof?’. 192 Jackson, Law, Fact and Narrative Coherence, p. 11.

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Here we can clearly observe the polysemic nature of the concept of truth and the multiple ways in which it differs from the concept of law. We can also observe that the law as a mechanism for drawing out the truth is flawed; thus, the legal system cannot guarantee justice. Hence, when answering the question, ‘Do Tigers confess?’, we need to devise a strategy that accommodates these multiple concepts and associated disciplines. For this reason, this enquiry adopts a multidisciplinary and many-sided approach to the problem of understanding the nature of ‘truth’. The issues and questions raised above demand an investigation into the truth, law, and justice in relation to Tigers’ confessions both within and outside the domain of law. This approach does not necessarily reject the status of the judiciary, but it aims to question the monopoly of the law in determining the truth of the Tamil Tigers’ confessions by deploying interpretive tools from other disciplines. Therefore, the methodology of this research is built around gathering and analysing narratives related to the confessions in a cross-disciplinary context. This cross-disciplinary analysis will provide a far more complex picture of the polysemic nature of the truth and the competing versions of the truth of these confessions. A significant proportion of this project is based on empirical research which included a field study conducted between 2007 and 2008 in Sri Lanka. Most of the fieldwork activities were conducted with the support of a community legal centre which operated in the western, northern and eastern provinces of the island. This fieldwork component included interviews with prisoners, former detainees, lawyers, judicial medical officers and other government officers which were held in Colombo and several locations in the eastern province. The study also included several observation trips to the courtrooms of the Colombo High Court during which the conduct of lawyers, judges, police officers, suspects and witnesses was recorded in order to capture the physical manifestation of the administration of justice and its performative elements. Further, the study required access to prisons, court archives and certain government officers such as judicial medical officers and senior officers of the Police Department and the Attorney-General’s Department.193 The released detainees and prisoners who were interviewed for this project were recruited by the aforementioned community legal centre and interviewed in their first language.194 These participants were reluctant to be 193 The author secured access to these places and people in his capacity as a legal practitioner, using his professional networks. 194 No interpreters were engaged as the author is able to speak the Tamil and Sinhalese languages.

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formally interviewed, mostly because they were fearful that the information they provided might fall into the hands of the agents of police, military or paramilitary groups and that they could be persecuted for disclosing such sensitive information. Most of the participants who were interviewed are identified by pseudonyms in order to protect their identity, and their birthplace, residential address and any other personal information that might disclose their identity are not provided in this research. Two out of three convicted prisoners (Nallaratnam and Sellapulle) have been identified by their real names with their permission, and any sensitive information that could bring any subsequent discomfort or harm to these prisoners has been omitted from this research. In this regard, the case details of these two prisoners have been published elsewhere and their identity could be easily established even had pseudonyms been used.195 The other interviewees included eight defence lawyers, three lawyers of the Attorney-General’s Department, two judicial medical officers, one medical officer, one senior police officer, and one community worker. The most important research materials used in this project – the confessions of Tamil Tigers – were sourced from the archives of the community legal centre and the Colombo High Court Registry. Twenty-eight confessions were analysed and these documents were selected for inclusion in the sample based on several factors. First, the confessions of the five individuals who participated in the interviews were included and are discussed in detail, and compared with their interview responses. Second, two more confessions were selected because they were mentioned by the lawyers during the field interviews, and they contained certain elements that were related to the material covered in the interviews. The rest of the 21 confessions were randomly sourced from the archives and included confessions recorded during the period 1993-2004. All of the confessions in the sample were taken from concluded court cases, except one confession, which was sourced from a pending trial at the time of the field research. Two confessions in the sample were taken from females and the rest were taken from males, and all of them were Tamils from the northern or eastern parts of the island. The confessionary statements in this research are presented as verbatim translations that best reflect the linguistic structure of the original narratives.196 The number of sentences in the original confession has not been 195 For example, materials on Nallaratnam’s communication to the UN Human Rights Committee have been published. 196 The confessions were translated from Sinhalese into English by the author. The author is fluent in the Sinhalese language.

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changed and certain idiosyncratic phrases, grammatical constructions and punctuations, including those that may appear as typographical errors or spelling or grammatical mistakes, have been reproduced. Only seven confessions are discussed in detail in this research, while the remainder are used in Chapter 3 as part of a comparative analysis of confessionary narratives. Focusing on a specific aspect of the confession, each chapter will apply a range of suitable disciplinary perspectives in order to empirically establish: (a) whether, if at all, the Tigers have confessed en masse; (b) if so, whether they confessed voluntarily; (c) if they did confess, what the reasons for such confessions could be; (d) how these questions on voluntariness have been answered in the criminal justice system; and (e) the outcomes of the confessions, i.e. conviction or acquittal. However, a large part of this research is dedicated to understanding the broader issues around confessions and narratives of war. Four of the five chapters concentrate on one of the specific questions posed at the beginning of this research.197 Chapter 2 poses the question: What attributes of the LTTE military subculture either support or dispute the fact that the Tigers have confessed en masse? The chapter focuses on the military subculture of the Tamil Tigers to explore their official narratives of war and how they relate to the veracity of the alleged confessions. This chapter sets the scene for the succeeding discussions by presenting and analysing materials on the historical, political, military, and spiritual aspects of the Tigers’ rebellion. It positions the Tigers’ off icial narratives in contrast to the narratives of the state, which are the confessions recorded by the police as agents of the state. The methodology involves f ield interviews and analysing the Tigers’ official narratives. Most of these official narratives were only available on the internet due to restrictions imposed by both local and international authorities prohibiting the distribution of these materials through printed media. The research platform of this chapter is built on the field of terrorism studies, including theories and knowledge of suicide terrorism. Chapter 3 focuses on the text of the Tigers’ confessions, based on a research platform which sources the theories, practice, and knowledge within the field of narrative analysis and forensic linguistics. The focus 197 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 Tamil Tigers from the judiciary in Sri Lanka?

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of this chapter is related to the research question: Can the authenticity of these confessions be determined by linguistic and narrative analysis methods? In the third chapter, the police’s version of the confessions will be probed through an examination of the texts within these confessions. The confessionary statements analysed in this chapter were gathered by archival research. Selected segments of the confessions will be submitted here in order to examine the templates used to construct the confessions, the storytelling elements to identify patterns, structures, and content that either support or cast doubt on the plausibility of the confessions. Further, narrative analytical strategies including forensic linguistic tools will be used to assess the credibility of the confessions. Chapter 4 will return to the previous discussion on the state of exception and investigate how the state’s agents have enforced counter-terrorism measures among the suspect population, and how such measures have impacted individual suspects. Accordingly, this chapter focuses on the suspect’s version of the narrative, presenting the unofficial narratives or stories of the Tamils who have been brought before the criminal justice system. This exercise positions the subaltern voice of these ex-political prisoners against the state’s official narratives, while exploring the broader issues of how the suspect population was defined and what strategies were applied to investigate crimes, gather evidence, and prosecute the suspects. This discussion is also linked to penal theory, including Foucault’s writings and their applicability to the civil conflict in Sri Lanka. The key methodology used in constructing this chapter is based on interviewing convicted and released Tamil Tiger suspects and their attorneys. As legality, justice, and truth of a confession are ultimately decided within a courtroom setting, Chapter 5 will explore the judges’ interpretation of the confessions by analysing the narratives of the court proceedings including the trials, submissions and judgements. In doing so, this enquiry will return to the domain of the law to investigate the response of the judiciary to terrorism by critically reviewing the judgements. The aim of Chapter 5 is to answer the question: What are the possibilities and limits of a fair hearing for Tigers from the judiciary in Sri Lanka? To answer this question, international human rights standards will be used as a benchmark for determining the nature and quality of justice. The methodology underpinning the content of this chapter involved conducting archival research to gather documentation of courtroom proceedings, and interviews with lawyers and prosecution officers. Further, a number of court visits were undertaken to observe the nature of courtroom proceedings and to gain insights into the performative aspects of the hearing.

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These chapters will seek to provide adequate answers to the aforementioned questions, and will inevitably pose more questions, the answers to which fall outside the scope of this research. Such questions are discussed in the final chapter, Chapter 6. The final chapter also considers the ‘conclusion’ of the ethnic war and the ‘post-conflict’ era. Chapter 6 will briefly discuss the reasons for the failure of the Tigers’ rebellion and the future of the counter-terrorism regime.

2

Rebellion and martyrdom

To achieve success in the legal war against terrorism, the Government of Sri Lanka has relied heavily on its agents operating on a mass scale by prosecuting offenders in large numbers. The validity of this strategy can be investigated by examining the systems established by the state that enabled the mass-scale arrest, interrogation, and prosecution of Tamil Tigers, or by exploring the systems established by the terrorists to prevent mass-scale prosecution. This chapter adopts the latter approach by examining the systems adopted by the LTTE to prevent the mass-scale arrest, evidence gathering, and prosecution by the state. Hence, this chapter will answer the question: What attributes of the LTTE military subculture either support or dispute the fact that Tigers have confessed en masse? Accordingly, the plausibility of a Tiger submitting and confessing to the police is determined by positioning the Tigers’ official narratives against the confessionary narratives recorded by the police. The chapter begins with a detailed discussion of the origins of the Tamil Tigers, and their victories and failures. This is followed by an analysis of the concept of martyrdom within the movement, including its relation to confessions. This analysis will be followed by a discussion of the virtues of pride, loyalty, and discipline upheld within the LTTE, which contrast starkly with the abject voice of the confessions. Finally, this chapter presents a detailed discussion of the Tigers’ suicide attack strategies, which are similarly incongruent with the submissive characteristics seen in the confessions presented by the police. The methodology of this chapter involves a review of the global literature on terrorism, presenting and analysing confessionary narratives, field interviews, and a range of propaganda materials, including video footage and victory speeches. The case study presented in this chapter is that of Prem, who has been convicted by the High Court on the basis of his confessionary statement. A number of factors may have resulted in Tigers giving voluntary or involuntary confessions while in captivity. As mentioned in the previous chapter, it is possible that the police have used physical and psychological oppression to coerce confessions from the Tiger suspects; yet it is also possible that the Tigers confessed voluntarily. For example, some Tigers might have lost motivation to continue the struggle during the long-running war and surrendered to the security forces. Further, in the late 1980s, while the LTTE was expanding in order to counter the swelling size of the Sri Lankan security forces, the movement relied on conscription, which

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arguably downgraded its stringent selection criteria. There were reports that the conscripted rebels, including child soldiers, were surrendering to the government’s security forces.1 Sometimes the police were able to successfully arrest Tigers based on tip-offs or by random search-and-arrest operations. Prem was one of those who confessed, on 11 July 2000: When I was selling clothes near the bus stand in Galle, I met Jithendran and Pulendran. Jithendran taught us how to fix a bomb. He promised to give us money, if we set the bombs to blast electricity transformers. I set one bomb in a rubber estate. It went off. Jithendran gave me 500 Rupees. Then I set another bomb in a factory. That too went off. Later I set two more bombs at a railway station and in a warehouse. We received 5000 Rupees.2

In addition to the confession recorded by the police in Sinhalese, Prem also had a confession handwritten in Tamil, his mother tongue. Based on these pieces of evidence, Prem was served with fourteen indictments at three High Courts for various terrorism offences. Prem’s lawyers unsuccessfully contested the voluntariness of his confession and Prem was sentenced to 40 years’ imprisonment. A fake identity card found in his possession was of great detriment to his defence. The 30-year-old man had already spent seven years in custody when he was interviewed. Prem had not apologised formally in his confession, but his statement reflected his desire to detach himself from terrorist motives. He did not mention anything about his commitment to building a separate Eelam nation, and nor did he show any pride in admitting his guilt. He indicated that he set several bombs because he had been asked, and paid, to do so, not because he was committed to the rebellion. It was a counter-narrative that contrasts with the Tigers’ official narratives, as presented in an annual Hero Day speech of the Tigers’ leader Prabhakaran: In terms of manpower, firepower and resources, the enemy was strong and the balance of military power was in his favour. Yet we had an extraordinary weapon, which was not in the arsenal of the enemy. The courage and commitment of our fighter is our most powerful weapon in the battle.3 1 University Teachers for Human Rights (Jaffna), Child Conscription and Peace. 2 Field interview, Colombo (6 July 2007). 3 Pape, Dying to Win, p. 33 (citing Eelam Web, www.eelamweb.com, viewed in May 1998).

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‘Courage’ and ‘commitment’ are traits negated by a confessing Tiger because, by confessing, the rebel admits guilt in an apologetic tone, often giving away military secrets and betraying sympathisers as Prem did in his confession. The image of a confessing Tiger presented by the police is one of a timid and frail individual who is fearful of punishment, imprisonment or death – an image that does not align with the Tigers’ official narratives. The video footage of Tigers’ victories posted on YouTube cast serious doubts on the submissiveness of at least some Tigers as portrayed in their confessions: The video camera on board captures a vision of the dawn sea on the Indian Ocean, sparked by hundreds and thousands of lights indicating blazing gunfire. A vessel of the Sea Tigers is attacking a Dvora-class fast patrol boat belonging to the Sri Lankan Navy. When the camera pans abruptly, it captures a few more Sea Tiger boats in the distance, all firing at the patrol boat with high-power machine guns. The noisy soundtrack explodes with endless gunfire and yelling and swearing of Tigers in Tamil. Then there is a very long shot of a fire in the navy ship and smoke rising into the air. Later footage cuts to the victory – the Sea Tigers embarking on the upper deck of the destroyed battleship covered with the blood-stained bodies of dead navy sailors. Subtitles float over the screen: ‘40 navy men have been killed and 4 Tigers have sacrificed their lives’. 4

Since a little-known 21-year-old named Prabhakaran, a member of an insignificant military group, had shot the mayor of Jaffna, Alfred Duraiappa, in 1976, he had come a long way. Prabhakaran broke away from the Tamil Eelam Liberation Organisation to establish the LTTE, and he transformed his guerrilla cadres into a regular army with bases in the jungle, uniforms, a selection process, and ranks.5 He structured his army, dividing its soldiers into specialised brigades and divisions, similar to a professional military organisation. The divisions included the Black Tigers (the suicide bombing division), Sea Tigers (naval attack unit including a submarine research unit), and Air Tigers (an air force with two propeller-powered, two-seater planes). He established an autonomous unit for women (the Birds of Freedom),6 and decreed that women combatants should f ight side-by-side with men. Although Prabhakaran distanced himself from communist ideology, he was inspired by Maoist strategies of revolutionary 4 Unceasing Waves 1 Sea Tigers Battle. 5 Gambetta, Making Sense of Suicide Missions, p. 61. 6 De Mel, Women and the Nation’s Narrative, p. 205.

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warfare. As early as 1986, the Tigers tested their own shadow government in the Jaffna peninsula, running a police service and a tax system.7 They operated a network of international enterprises, both legitimate and illegal, to generate income, the methods of which included the operation of international shipping companies, drug trafficking, people smuggling, and extortion. 8 The Tigers also maintained a strong grip on the Tamil population and mercilessly imposed the death penalty on those who refused to obey them.9 When the Indian Army arrived in 1987 to disarm the Tigers, all Tamil militant groups except the Tamil Tigers submitted. Prabhakaran announced that ‘the methods of war may change [but] the aim [of our war] cannot change’,10 and the Tigers retreated to the deep sanctuary of the impenetrable forests to fight a guerrilla war against the world’s fourth-largest army. With its relatively limited combat capacity, estimated at around 10,000 to 13,000 fighters, the Tigers executed the most gruesome attacks in modernday warfare. The Tigers simultaneously fought on many fronts, including the assassination of key military and political figures, paralysing the political and economic establishments of the island. Between 1991 and 1994, the Tigers eliminated the core of the United National Party’s leadership, killing President Premadasa, presidential candidate Dissanayake and many other secondary leaders. President Chandrika Kumaratunga, the leader of the Sri Lanka Freedom Party, narrowly escaped a Tamil Tiger suicide attack. The Tigers even threatened leaders outside Sri Lanka. On 21 May 1991, they assassinated India’s former Prime Minister, Rajiv Gandhi, at an election rally in Sriperumbudur, Tamil Nadu. The Tigers never hesitated to attack civilians, either to shift a stalemate of the war or to avenge the killings of Tamils by the Sinhalese security forces. The Tigers’ countless massacres included the killing of 32 Buddhist monks at Arantalawa in July 1987 and the shooting of 146 Muslim civilians in Palliyagodella in October 1992.11 They also fought in conventional battles, sometimes reducing massive army camps to rubble. In 1996, they overran the Mullaittivu army base, killing 7 The key stages of Mao’s strategy were clearly evident in the rise of the Tigers: (a) ‘social penetration’, (b) forces organise in battalions to directly challenge the government’s forces, (c) convert the revolutionary forces into conventional armies and take hold of power, while simultaneously continuing psychological warfare. See Sarkesian, Revolutionary Guerrilla Warfare, pp. 8-10. 8 Mackenzie Institute, Funding Terror, pp. 1-12. 9 Bloom, Dying to Kill, p. 62. 10 Schalk, ‘Resistance and martyrdom’. 11 ‘The Trail of Terror’.

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nearly 1200 soldiers within 72 hours.12 Tigers are fearfully remembered for their gruesome suicide attacks. Between 1987 and 2001, they carried out 76 suicide attacks involving 143 male and female Black Tigers. At the time, these figures represented more suicide attacks than those perpetrated by any other terrorist organisation previously.13 In July 2001, a group of Tigers believed to be fourteen or fifteen in number executed a meticulously prepared plan at the Colombo International Airport, destroying half of the Sri Lankan Airline fleet and many air force jets with minimum harm to passengers, using a combination of anti-tank weapons, rocket-propelled grenades and T56 rifles, but mainly suicide bombers taking the security forces by surprise.14

Martyrdom The Tamil Tigers were not socialists, Marxists, Leninists or Maoists. They can best be described as a nationalist, fascist, chauvinistic, and militaristic agency that lacked a clear revolutionary ideology. On the other hand, the Tigers claimed their movement was a secular agency; unlike Islamic fundamentalist groups, the Tamil Tigers did not have a readily available theological foundation upon which to build their liberationist rhetoric. Nonetheless, this did not leave the group in a vacuum of political rhetoric, because they invented militaristic political theories of their own, postulated on certain seemingly secular principles of martyrdom based on Mavirar (the great hero), a Tiyaki (the altruist giver) who uses Uyirayutham (the life-weapon) to fight the enemy.15 Understandably, these principles of martyrdom were primarily built around the traits of the Black Tigers, as they were seen as the ideal combatants. Further, it should be noted that the Mavirar cult was not rhetoric isolated to talk of martyrs, but was enmeshed in the larger fabric of the Tigers’ militarised agency and manifest in parades, monuments, 12 Swamy, Tigers of Sri Lanka, p. 352. 13 Pape, Dying to Win, p. 139. Also see Bloom, Dying to Kill, p. 60. Bloom says: ‘they [the Tigers] perpetrated the most suicide bombing of any single organisation and more than those of the twelve other organisations using this tactic put together, until bypassed by Palestinian groups in 2003’. 14 Swamy, Tigers of Sri Lanka, pp. 349-351. 15 Schalk and Hettiarachchi discuss these concepts. It is difficult to identify the exact sources of these concepts. The concepts Mavirar and Tiyaki could have been borrowed from ancient Hindu or Sanskrit literature and the concept Uyirayutham could have been invented by the Tamil Tigers. See Schalk, ‘Resistance and martyrdom’, and Hettiarachchi, ‘Tamil Tiger “martyrdom” in Sri Lanka’.

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rituals, and officially narrated legends. As described by Prabhakaran, a Mavirar is a noble, fearless ideal: ‘Our martyrs die in the arena of struggle with the intense passion for the freedom of their people, for the liberation of their homeland; therefore, the death of every martyr constitutes a brave act of enunciation of freedom’.16 The concept of uyirayutham, which means ‘life-weapon’ or ‘life as a weapon’, is used in the LTTE to cultivate fearlessness among its members and to encourage them to embrace death instead of defeat. As Prabhakaran put it: ‘Fear is the outcome of weakness, a coward’s friend, an enemy of firmness. Fear of death is the cause of all human fears. One who wins the fear of death wins himself. He is the one who wins the freedom […] from his mental prison’.17 Tiyaki, or the ‘giver’, is a concept that has strong roots in the notions of spiritual benevolence and spiritual abandonment. Tiyaki is derived from the concept of tiyakam, which means the gift or abandonment of ownership. A suicide bomber is therefore a Tiyaki, who abandons his/her life not in vain but in the hope of liberating her people who are suffering at the hands of the enemy. Thamalini, a senior female Tiger, has explained: ‘People dejected in life won’t be able to go as Black Tigers […] There must be a clear conception of why and for what we are fighting. A deep humanitarianism is very necessary’.18 It is clear that the moral values of martyrdom imposed by the hierarchy of the LTTE had a strong impact on its individual members, and therefore played an important role in rejecting the idea that Tigers might submit to the enemy. This research does not intend to examine the socio-psychological impact of martyrdom on individual rebels in a broader sense; however, it is important to comment on its peculiar correlations with an individual’s faith, particularly in relation to the Tigers’ adaptation of the concept of Mavirar. As Reuter argues, martyrdom requires a ‘creative reinterpretation of theology that lends religious legitimacy to attackers’.19 In most cases, this religious legitimacy is imposed by the promise of the reward of paradise in the afterlife. This reward might have been overstated as the source of martyrdom in some cases,20 yet it is hard to ignore the impact of these religious beliefs on individual rebels.21 One can argue that such religious legitimacy and afterlife reward may prevent 16 Prabhakaran speaking in 1993 at Heroes’ Day, www.eelamweb.com, Dying to Win, p. 144. 17 Eelam Web, Reflection of Tamil Eelam National Leader V. Pirapaharan. 18 Waldman, ‘Masters of suicide bombing’. 19 Reuter, My Life Is a Weapon, p. 13. 20 Hacking asserts that the portrayal of the bombers as those who do it for the ‘love life’ in paradise is ‘largely a figment of Western orientalism’. See Hacking, ‘The suicide weapon’, p. 27. 21 Euban comparatively reviews how this topic was discussed by Pape, Bloom and Gambetta. See Euben, ‘Review symposium’ p. 130.

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the rebels of religious extremist groups from confessing, but can we propose that the same is applicable to a secular agency like the Tamil Tigers? Despite the fact that the Tigers constructed their movement as a secular agency, closer analysis suggests that the LTTE is not entirely free from religious influence. Although the Tigers did not sponsor any religious institutions, they did not denounce religion; thus, the movement allowed its members to practise their faith privately.22 Bloom has observed that terrorist organisations may claim to be secular but their members may have religious motivations.23 Further, Pape argues that religion helps terrorist organisations to ‘manipulate the language of martyrdom’,24 and it appears that the Tamil Tigers have done so by enshrining certain elements of religion into their Mavirar cult.25 In the Hero’s Day speech, the Tiger leader glorified the death of his heroes: A liberation warrior’s death is not a normal death occurrence. This death is a historical incident. It is a miracle of high ideal becoming a reality. In fact a liberation fighter does not die. The fine of ideal, which was his life never burns out. That fine of ideal becomes a historical force and captures the heart of others. It wakes up the national spirit of a race.26

These narratives bear close parallels to Hindu teachings (practised by the majority of Tamils) on the continuance of the soul after death (particularly the death of a heroic warrior), as described in the Bhagavad Gita: The embodied soul is eternal in existence, indestructible and infinite, only the material body is factually perishable; therefore fight O Arjuna.27 22 For example, certain Tiger members supposedly had their favourite deities such as the goddess Kali, the dark goddess of death and destruction, or the goddess Durga, the goddess of war, whom they worshipped before beginning a military mission. Field interviews, Colombo and Batticaloa (July, August 2007). Also see Arnestad, My Daughter the Terrorist. The documentary includes images of rebels worshipping in Hindu and Christian shrines. Forbidden Area includes a character (an LTTE rebel) who worships the goddess Kali. See Chandrasekaram, Forbidden Area. Further research is needed in order to understand the role of religion within the LTTE. 23 Bloom, Dying to Kill, pp. 14-17. 24 Pape, Dying to Win, p. 91. 25 Hettiarachchi doubts the Tigers’ secularism although he does not actively engage in a discussion to identify the religious or spiritual elements of their martyrdom. See Hettiarachchi, ‘Tamil Tiger “martyrdom” in Sri Lanka’. 26 Eelam Web, Reflection of Tamil Eelam National Leader V. Pirapaharan. The term ‘fine of ideal’ has probably been used to signify a role model or a paragon. 27 Vyasa, Bhagavad Gita, chapter 2, verse 18. Also see chapter 2, verse 20: ‘The soul never takes birth and never dies at any time nor does it come into being again when the body is created. The soul is birthless, eternal, imperishable and timeless and is never terminated when the body is terminated.’

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Prabhakaran adds: We have sowed the seed of an ideal, we grow it by irrigating with the blood of our martyrs. This seed will grow up into a luxurious tree and make our martyr’s dreams a reality.28

These narratives possibly refer to the ‘symbolic planting’ ritual of the Tigers. According to Schalk, the Tamil Tigers perform a secret death ritual, which they called ‘symbolic planting’, consisting of a recitation of a special text called the ‘declaration at the sepulchre of the great hero’.29 Schalk adds that the ‘LTTE martyr never dies […] [H]is body is planted as seed to be reborn’ because ‘the LTTE does not bury its dead, it plants them’.30 The cult of Mavirar does not make explicit reference to religious elements, but Prabhakaran’s narratives imply that the dead hero’s soul will be reincarnated like a ‘seed’ growing into a thriving tree in the future independent nation. Further, the concept of martyrdom has been celebrated among Tigers by another practice of a religious nature: the Jaffna Hindu society’s practice of worshipping dead elders by decorating the photographs with garlands was adopted by the LTTE to worship their dead heroes. The Tigers maintained shrines filled with hundreds of photographs of their dead heroes, decorated with garlands and lit with colourful light globes. These rituals, combined with the Hero Day speeches of Prabhakaran, imply that at least some of the Tigers believed they would pass on to the afterlife following their self-sacrifice. The assertion that the Tigers’ interpretation of the notion of martyrdom is not free from religious influence is important in a discussion of the Tigers’ confessions because the Tiyaki concept of the Mavirar cult repudiates the image of the repenting and confessing rebel. Arguably, Mavirar is an extreme parody of the confessor because Tiyaki is the altruist rebel who sacrifices his own life as a gift to his nation, in contrast to a repenting Tiger who admits his guilt to save his own life. Thus, the question arises: To what extent were these moral values put into practice by the Tamil Tiger rebels on the battleground, and how did they demonstrate their commitment to abide by such values?

28 Eelam Web, Reflection of Tamil Eelam National Leader V. Pirapaharan. 29 Schalk, ‘Resistance and martyrdom’. 30 Ibid.

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Pride, loyalty, and discipline The Tamil Tigers’ ethics are built on the bedrock of their ethnic pride, loyalty to the leadership, and discipline. The organisation tapped into the Tamils’ ‘sense of ethnic pride’31 by inviting young men and women to join the courageous family of ‘great heroes’ who gained a reputation for being invincible, both locally and overseas. Members of Tamil society have traditionally earned their status by belonging to an upper caste, gaining higher education and employment, and accumulating wealth. During the Tigers’ reign, the rebels and their families were given privileges while the movement actively discouraged gender and caste discrimination within Tamil society. Thus, the criteria for earning respect and pride in the Tamil community dramatically changed. The young rebels who had been naively referred to as ‘boys’ by their elders gained a sense of pride and status by joining the Tigers, regardless of their class, caste or educational status. Apart from providing guns and uniforms, the Tigers had a scheme to cultivate pride in the hearts of their members, who were taught to believe that life without pride is equal to death. Prabhakaran has said: ‘we took up arms to win freedom and pride for our people. Until we achieve that freedom and pride, we shall not surrender our weapon’.32 For Tigers, pride is of equal importance to freedom, and shame can shatter one’s dignity to the extent that one would choose death over a dishonourable existence. In this regard, Prabhakaran added: ‘The greatest disgrace is to be caught alive by the enemy’.33 The desire to reclaim lost pride appears to be a significant source of the outrage that spurred the Tigers on in their struggle, and their desire for pride was inevitably interwoven with the urge for revenge.34 As one Tigress has stated, ‘the harassment that I and my parents have suffered at the hands of the army makes me want to take revenge’. She further admitted that taking revenge was an act aimed at restoring ‘Tamil pride’.35 The Tamil Tigers have been perhaps the most disciplined terrorist group in the modern era. They were bound by a rigid code of ethics. Smoking, consuming alcohol, partying and having love affairs either inside or outside the organisation were all strictly prohibited. From day one of joining the 31 Bloom, Dying to Kill, p. 64. 32 From a speech given on June 1987, quoted in Swamy, Inside an Exclusive Mind, p. 124. 33 Reuter, My Life Is a Weapon, p. 160 (citing McGirk, ‘Tigerinned Töten leise’). 34 De Silva, ‘Hatred and revenge killings’, pp. 15-27. 35 Bloom, Dying to Kill, p. 64 (citing Charu Lata Doshi).

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movement, members became a cog in the Tigers’ gigantic military machine and were required to unconditionally follow their leaders’ commands. The identities of new members were reinvented as they were given new ‘organisational names’36; hence, they were forced to discard their former identities. One main condition of membership was the code of silence; which Tigers could never compromise. As Swamy says, ‘his [Prabhakaran’s] aides, present and former, are sworn to silence’37 and the Tigers ‘adhered to this rule religiously’.38 The ‘code of silence’ was the lifeline that sustained the Tigers’ discipline. While the rule prohibited speaking against the movement, it also prevented members speaking about the organisation’s secrets. In some cases, the rule prohibited revealing an individual’s identity. For example, suicide bombers and the members of the Intelligence Wing kept their personal history secret; not even those who fought side-by-side knew their associates’ real identities. The entire movement was organised and structured around the need to protect its secrets; therefore, a captured Tiger would not have much information to offer the police. Undoubtedly, the Tigers’ code of silence was the single and strongest hurdle to police interrogation. On the other hand, Tigers ran a sophisticated counter-intelligence operation. The Tiger leaders’ secret agents habitually mingled with the rebel armed units and civilians, gathering intelligence. Further, the Tiger leaders had schemes to ensure the frontline cadres did not retreat when facing heavy resistance from the enemy. For example, the ‘Truth Tigers’ – the official media unit of the organisation – followed the cadres to the frontline, video recording live the events on the battlefield. This footage was used in training and propaganda, as well as to identify hesitant combatants. In other words, Tigers had little opportunity to retreat without being detected by their leaders. Above all, quitting the organisation was virtually impossible.39 Tigers of all ranks were utterly loyal to their leadership, which prevented them from speaking against their leader or denouncing their rebellion either in private or in public. From its inception to its annihilation by the state, the LTTE had only one supreme leader, Prabhakaran. His authority was rarely questioned within the organisation, and those who questioned him, including his deputy leaders, were brutally silenced. Once they joined the LTTE, members were made to believe that nothing should come between them and their leader’s authority. As part of the ceremonial passing-out event, every 36 Swamy, Inside an Exclusive Mind, p. 96. 37 Ibid., p. xvii. 38 Ibid., p. 96. 39 Ibid., p. 203.

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newly trained member took an oath promising to ‘sacrifice my life and soul to my organisation and to my leader Prabhakaran’.40 This clearly affirmed that the organisation was equal to the leader. Swamy explains that: ‘the members do what the leadership says. Theirs is not to ask why, theirs but to do and die […] The leader is always right’.41 Malathi, a female Tiger, asserted: ‘I will do it [commit suicide] if my leader commands me’.42 To ensure loyalty from his rank and file, Prabhakaran constructed himself as the supreme leader and ultimate sovereign of the organisation. Claiming to be somewhat transcendent and sublime in his role as both originator and nurturer of the movement, he attempted to elevate himself to a supreme, indeed near divine, status: I have groomed my weak brethren into a strong weapon called Black Tigers. They possess an iron will, yet their hearts are so very soft. They have deep human characteristics of perceiving the advancement of the interest of the people. 43

On the other hand, the members feared their leader’s merciless authority. The punishment for treachery or treason was death. Bloom says: ‘Prabhakaran has established a rule of terror in the city of Jaffna. According to scores of accounts from defectors and others who have escaped Tigers’ tyranny, many of his own lieutenants have been murdered […] Tamils who have criticised him, even mildly or in jest, have been picked up for years in dungeons, half starved, hauled out periodically for battering by their guards’. 44 Thus, the fear of the leader’s authority, mixed with a strong sense of devotion, defended the movement from various fractions and conspiracies for a long time, delaying the decay of the LTTE until Prabhakaran was assassinated by the Sri Lankan armed forces. This strong sense of pride, discipline, and loyalty likely suppressed both rational and irrational free-thinking within the movement. Every act, every word and perhaps even the thoughts of individual rebels were dictated by the rules of the movement, which were the rules espoused by their leader. Hence, it could be argued that a Tiger confessing to the enemy could only bring shame, humiliation and disownment, and that the Tigers therefore would rather have chosen death over confessing. In fact, the movement had 40 Boston Lanka Media, Story of Adele Balasingham. 41 Swamy, Inside an Exclusive Mind, p. xix. 42 Grey, Sri Lanka’s Female Tigers. 43 Bloom, Dying to Kill, p. 64. 44 Bloom, Dying to Kill, p. 71 (citing John Burns, A Sri Lankan Evokes Pol Pot; Asia’s Latest Master of Terror).

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a sophisticated suicide strategy in place to ensure that rebels did indeed choose death over submission to the enemy.

The suicide strategies The Tamil Tigers took pride in their practice of committing suicide to avoid being killed by the enemy or arrested alive. Two key instruments prevented Tigers from being caught alive: the cyanide vial and the suicide bombing kit. When examining the plausibility of their confessions it is important to recognise how widely these instruments were used. The suicide strategy of the Tigers was instrumental in enforcing their code of silence as it prevented them from being captured alive by the police, and forced to confess. The Tigers’ suicide bombing device, which they often referred to as the ‘jacket’, is a device that symbolises their relentless commitment to their cause. The rebel in an explosive jacket renders all the state’s sophisticated investigation and interrogation techniques helpless because there is no possibility of the suicide bomber being interrogated or approached by an investigator. The security camera footage45 of the bombing of the Sri Lankan minister Douglas Devananda’s office in Colombo on 28 November 2004 provides a graphic representation of the fate of those who come between a suicide bomber and her target, although miraculously the minister survived. In the footage, the bomber, who was later identif ied as 24-year-old Sujatha Vagawanam, was wearing a skirt and blouse as she calmly walks into the queue to register to meet the minister. She looks around the venue curiously. Then a staffer of the minister escorts her through a crowded waiting area into a room to verify her identity and clarify the purpose of her meeting with the minister. Sujatha disappears from the view of the security camera, but it captures the effects of the explosion of the bomb, instantly killing several men and women in the waiting room. According to news reports, the staffer of the minister who interviewed Sujatha had become suspicious and so the bomber decided to explode the bomb hidden between her breasts, before she could be arrested. 46 In most cases, terrorist groups appear to use suicide bombing when other military tactics fail or when they are in competition with other terrorist groups. 47 However, suicide bombing was not the last resort for the 45 Sri Lanka Ministry of Defence, ‘Madness of Terrorism’, LTTE Human Bomb in Action. 46 Ibid. 47 Bloom, Dying to Kill, p. 1.

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Tamil Tigers, but rather an integral part, even an intensification, of their strategy of insurgency. 48 The organisation had a sophisticated strategy of employing suicide bombers, using high-power explosives and technology to construct the bombs. They regularly conducted dress rehearsals and employed shadow bombers as back-up attackers if one withdrew.49 It was estimated that at any given time between 150 and 200 Black Tigers remained on stand-by.50 The Black Tigers engaged in both on-the-battlefield and off-the-battlef ield suicide operations. They were used in conventional warfare, including ground attacks, sea attacks, and air attacks.51 They also engaged in guerrilla attacks and targeted assassinations or bombing of important persons, places or events. The Black Tigers served many strategic purposes for the LTTE: to compensate for the lack of heavier weaponry, to reach inaccessible or difficult targets, and to instil fear in, intimidate and demoralise the enemy and the public. The Tigers’ first suicide attack was reported more than a decade after the birth of the LTTE. When the government forces recaptured the Vadamarachchi area (Prabhakaran’s hometown) in 1987, he decided to punish them. The plan was to drive a truck loaded with explosives into an army camp and leave the truck so the driver could escape. The plan was delayed as the Tigers were not sure how to secure a safe passage for the driver to escape. The chosen Tiger, Captain Miller, agreed that it must be a suicide attack. On 5 July 1987, Miller drove the truck to Nelliady public school, which had been converted into the Jaffna Operational Headquarters of the army. Miller exploded the truck, bringing the army complex crashing down in clouds of dust, and killing at least 40 soldiers. This event marked the birth of the Black Tigers.52 By 2007, the number of Black Tigers who had died in action reached 322.53 Black Tigers were treated as elite soldiers and selected through a rigorous assessment process.54 Their motto was ‘You die only once’55; and they would say, ‘when you are a Black Tiger, you know when you die. But all others don’t know when you die’.56 Arnestad interviewed two female Black Tigers in 48 Gambetta, Making Sense of Suicide Missions, p. 46. 49 Pape, Dying to Win, pp. 229-230. 50 Ibid., pp. 229-230. 51 Gambetta, Making Sense of Suicide Missions, p. 44. 52 Swamy, Inside an Exclusive Mind, p. 156 (whether Captain Miller intended to give away his life was disputed, and some authors say it was not originally intended to be a suicide mission). 53 Luthra, ‘Discipline, death and martyrdom’. Also see Athas, ‘The terrible truth behind the freezer truck’. 54 Gambetta, Making Sense of Suicide Missions, p. 46. 55 Pape, Dying to Win, p. 223. 56 Arnestad, My Daughter the Terrorist.

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her documentary, My Daughter the Terrorist. One Tigress in her mid-20s, wearing a stripy camouflage uniform, spoke to the camera while engaging in routine physical training activities. If you are a Black Tiger, you have to be very strong. You have to be courageous to follow your target to the end. You must be strong to follow your leader’s orders […] There are two ways that Black Tigers attack. You fight first and destroy as much as enemies you can then you kill yourself. Secondly, you don’t kill other enemies and you only follow your single target. When we go on a mission there is a tracking system for our guys to find out whether we are still alive or dead […] Earlier, we used to get orders from our leaders and they nominated one of us for the attack. We used to argue with each other because everyone wanted to go first. Now we choose the attackers by selecting names out of the hat […] I am waiting for my death. I am waiting to hear the big blast. I am longing for it.57

The Black Tigers undoubtedly faced a great deal of pressure from various levels. Pape’s ‘causal logic’58 of suicide terrorism can perhaps help us to understand the external pressures and internal compulsions experienced by a Black Tiger. This causal logic includes three levels: the ‘strategic level’, which is related to coercive power; the ‘social level’, which is related to mass support; and the ‘individual level’, which is related to altruistic motive. According to Pape’s interpretation, an integral relationship exists between the suicide bomber and the constituency he/she serves, because the bomber is meant to liberate his/her people by inflicting punishment on the enemy. It could be argued that this relationship becomes part of the larger partnership constructed by the Tigers between their movement and their constituency, aimed at securing public loyalty. This partnership can be seen to impose a sense of compulsion both internally and externally on the rebels to continue their mission. This means the bombers had dual obligations: an obligation to serve their commanders and their movement, and a social obligation to their constituency. Hence, refusing to face the enemy and returning alive to their community would likely be an utterly shameful act for a Black Tiger. Although Black Tigers were said to have been given the option of withdrawal when they were not mentally prepared for a mission, it is unlikely that many would give up their missions for which they had been in training for a long time. This 57 Ibid. 58 Pape, Dying to Win, p. 22.

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contention is further supported by the lack of any reliable reports of Black Tigers discarding their missions and surrendering to the police. However, it is important to note that the Black Tigers represent a very small part of the Tamil Tiger movement, and their commitment and bravery may not always be mirrored by all members of the organisation. Therefore, it is also important to investigate the level of commitment shown by ordinary cadres of the movement. During the ceasefire, enforced by the Indo-Lanka peace treaty in 1987, the Sri Lankan navy arrested 17 Tigers smuggling arms to Jaffna. The captives were to be taken to Colombo for interrogation. They passed a secret message to their leaders asking for cyanides. The Tigers’ deputy leaders, Mahaththaya and Balasingham, themselves brought cyanides hidden in their food. Before the Tigers were taken to Colombo they consumed cyanide. 12 of them died instantly and 5 miraculously survived after being taken to the hospital.59

There are no accurate accounts of the numbers of Tigers who have died as a result of consuming cyanide. Reports in the late 1980s suggested that over 300 Tamil Tigers committed suicide in this manner,60 and by 2006 these estimates had risen to 600.61 Because of these cyanide deaths, only a few secrets were revealed.62 During the early period of the war, the security forces fought in the dark because there was no intelligence available on the Tamil Tigers.63 For a long time, the police had no information on the number of cadres, their whereabouts or the weaponry they possessed. Pape says: ‘only a few have ever been captured alive, many having their stomachs pumped before the poison took effect’.64 A medical practitioner who worked in a hospital in the northern province said: ‘Last year, I have seen 10 dead bodies with cyanide vials hanging around their necks. Some have committed suicide and some have died in the fighting. This year [by July 2007] I 59 Swamy, Inside an Exclusive Mind, pp. 179-180. As the Tigers were arrested during the ceasefire, they might have expected to be released without interrogation; so they might have decided not to consume the cyanide initially. It could be presumed that the Tigers’ cyanide vials were removed by the navy when they were arrested. 60 O’Ballance, The Cyanide War, p. vii. 61 Pape, Dying to Win, p. 143. 62 O’Ballance, The Cyanide War, p. vii. 63 Sri Lankan defence officials were able to significantly improve the quality of their intelligence on the Tigers after Karuna broke away from the LTTE in 2004 and joined forces the government. 64 Pape, Dying to Win, p. 143.

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have already seen eight of them. Sometimes they were wearing two cyanide vials perhaps because one is not strong enough to kill someone instantly’.65 The cyanide vial has a longstanding history in the Tamil Tiger movement. As early as June 1974, the first rebel committed suicide by consuming cyanide: Sivakumaran, an associate of Prabhakaran, was surrounded by the police while he was robbing a bank. Not wanting to fall into the hands of the police alive, he swallowed a cyanide pill and collapsed. Prabhakaran later decreed that every Tiger should carry a cyanide vial to be used in the face of certain capture.66 This strategy was based on the theory that no man or woman can indefinitely withstand torture, and therefore will eventually break and reveal secrets.67 Mavirarkurippetu68 explains that when someone joins the movement, they must pledge to take cyanide if necessary as part of their oath of allegiance. There are four circumstances in which a rebel must consume cyanide: when they are facing the threat of capture in armed combat; when they are surrounded or imprisoned; when they are inflicted with mortal wounds, and realise they are an obstacle to their comrades; and after capture by the enemy, when the rebel is facing torture and death.69 News footage and propaganda materials posted on the internet show closeups of the deadly suicide device known as ‘kuppi’ used by the Tamil Tigers: a small glass vial worn with a little black string as a pendant, which resembles a fashion accessory.70 A BBC documentary included a shot of a tray of glass vials filled with a lethal solution, which then zooms out to reveal a passing-out ceremony for a group of young female Tigers, at which they are each presented with a vial by one of their leaders who places it around their neck. The rebels wear it fully exposed in their daily encounters with civilians. Schalk says: This exposing and ritualisation of the [cyanide] capsule has given rise to talk of a ‘cult’ of the cyanide vial. The vial is dear to the LTTE fighters and there is even an LTTE song praising the taking of cyanide sung in public at the Great Heroes Day on November 27. The ‘vial with cyanide’ is regarded as a friend, especially by woman fighters facing rape before a cruel execution by the enemy.71 65 Field interviews, Jaffna (July 2007). 66 Swamy, Inside an Exclusive Mind, p. 26. 67 O’Ballance, The Cyanide War, p. vii. 68 Mavirarkurippetu (Collection of great heroes) consists of volumes of accolades, similar to eulogies, published by the LTTE to honour their dead heroes. 69 Schalk, ‘Resistance and martyrdom’. 70 Luthra, ‘Discipline, death and martyrdom’. 71 Schalk, ‘Resistance and martyrdom’.

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Tigers would say, ‘we are married to our cyanide; it makes us clear-headed and purposeful’.72 With the vial around their neck, they lived close to death, sometimes fantasising about their heroic suicide. Maraivedan, a young male Tiger, explains: ‘We need to bite into the glass so that it will cut the skin on the inside of our mouth. Then the cyanide goes into the bloodstream. We’ll be feeling a fizzing at the back of our mouth after about seven seconds and then we die’.73 The Tamil Tiger leader Prabhakaran himself wore a cyanide vial, and there was a legend that he had once attempted to commit suicide when he was surrounded by the army in Jaffna in the mid-1980s. Kittu, one of the deputy commanders of the Tigers, has stated: As long as we have this cyanide around our neck, we have no need to fear any force on earth. In reality, this gives our fighters an extra measure of belief in the cause, a special edge; it has instilled in us a determination to sacrifice our lives and our everything for the cause. While attacking, our fighters don’t count their lives. They will advance nonchalantly through an artillery attack or a hail of bullets.74

This statement captures how the deadly vial is used as a weapon by the Tigers in their separatist warfare. While the guns, bombs, and armed vehicles were used to destroy the enemies’ fortresses, Tigers used cyanide to destroy the morale and the hope of the enemy – especially the hope of capturing a Tiger alive and unearthing their secrets through interrogation. An emblematic example of Tigers using cyanide as a weapon against police arrest comes from India. After India’s former prime minister, Rajiv Gandhi, was assassinated by a suicide bomber in an election rally in South India in May 1991, evidence emerged suggesting that Tamil Tigers had been behind the attack. A photographer who was hired by the Tigers to document the attack (Tigers regularly collected photographic and video documentation of their attacks) died in the bomb blast, leaving the camera at the scene of the crime. It was a monumental mistake on the part of the Tigers; the police started a rapid and expensive campaign to hunt the killers who appeared in the photographs. The Tigers who were involved ran away to avoid being arrested alive, because the orders of their leaders were to hide any links between themselves and the assassination of Rajiv Gandhi. This was a 72 Whittaker, The Terrorism Reader, pp. 85-86. 73 Luthra, ‘Discipline, death and martyrdom’. 74 Schalk, ‘Resistance and martyrdom’ cited a recorded statement by Kittu in London on 30 March 1991.

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political assassination in the foreign territory of a powerful neighbour, and the Tigers did not want their name tainted, and continued to deny their involvement. During the six-month period of hide and seek with the police that followed, 28 Tigers swallowed cyanide to avoid being captured alive. Kaarthikeyan, the chief investigator in the case, describes how two Tigers who were involved in the assassination destroyed all evidence moments before the police net fell upon them: We were aware that LTTE cadres had instructions to bite the cyanide capsule if surrounded by the police […] The local police officers who had laid siege to the LTTE hideout tried talking to Dixon and Guna, promising no harm would come to them. But the duo was too clever. They kept up the conversation with the police, using time to destroy important documents […] When Dixon and Guna felt that all their sensitive documents and materials had been destroyed, they took their lives by exploding a grenade, shooting [themselves] with a pistol and using cyanide.75

Later reports of this event reveal the extent to which the Tamil Tigers’ cyanide strategy is a systematic and effective method of protecting the organisation’s secrets, as the Tigers were prepared to protect their secrets by undertaking mass-scale suicide missions. In August 1991, the Indian Police raided Tiger hideouts in the Muthati and Biroota villages in Karnataka province to find that seventeen Tigers hiding in these villages had consumed cyanide capsules, twelve dying as a result, while five were saved.76 At the end of the months’ long pursuit, police were only able to arrest a handful of accomplices to the assassination and failed to secure a single confession from any key players in the attack. Thus, the cyanide vial has become the antithesis of the confession, raising significant doubt over the validity of the Sri Lankan Government’s mass-prosecution strategy. Female Tiger Nandini has said: If I am captured and I give up ten names of people in the movement, they’ll capture and torture those ten to get a hundred names, and after capturing a hundred people they can capture a thousand people, and so on. In this way, a movement can be destroyed. So if you ask me why I should give up my own life [by taking cyanide] […] at the time when we are captured alive by the enemy, when I die, [I will die] as a single 75 Kaarthikeyan and Raju, Triumph of Truth, p. 90. 76 Ibid., p. 100.

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individual who gives up her life […] I have the capacity to protect not only the lives of several other people but I am also able to protect the movement and the liberation struggle as a whole.77

As highlighted by Nandini’s statement above, had the Tigers not protected their secrets with this cyanide strategy, the movement would not have survived as it did for more than three decades. It did so despite the existence of many rival Tamil paramilitary groups, the intervention of the powerful Indian Army, and the constant challenges posed by the Sri Lankan Police and security forces who dramatically outnumbered them.

Truth, fear, and fantasy This exercise of contrasting the narratives of the Tamil Tigers with the official narratives of the Sri Lankan state casts serious doubts on the likelihood of Tigers confessing to the police, particularly in such large numbers as has been claimed. Accordingly, in answer to the question posed earlier (What attributes of Tigers’ military subculture either support or dispute the fact that Tigers have confessed en masse?), the factors that might support Tigers confessing to the authorities appear to be significantly outweighed by those elements within the organisation’s subculture that would discourage confessions: the suicide bombing strategy, cyanide strategy, unconditional loyalty to the leadership, blind faith and discipline, and the influence of the ideal of martyrdom. This is not to propose that all Tiger suspects are innocent. In the privacy of an interview room in the prison, Prem, whose confession was presented at the beginning of this chapter, shared his secrets: I was a member of [the] Intelligence Wing of Tamil Tigers. We are sometimes not supposed to wear a cyanide capsule when we mingle with ordinary people, because it is quite visible and often we get bodysearched at checkpoints. I gathered intelligence for many years until I was arrested at a checkpoint in the east. Somebody had tipped [them] off; otherwise the police wouldn’t have caught me. The police exactly knew my details and that I was travelling in that specific van. They found a fake identity card in my possession. They kept me in custody for nearly five months incommunicado and tortured me, demanding information. 77 Sangarasiwam, ‘Liberation Tigers of Tamil Eelam and the Cultural Production of Nationalism and Violence’, cited in Pape, Dying to Win, pp. 143-144.

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It was unbearable but I didn’t give away any secrets. They asked me to write a confession in my own handwriting. The police officer dictated [to] me what to write, which I scribbled on the paper.78

In another court case, the defence lawyer claimed that he was not aware that he was defending a Tamil Tiger: The confession was full of prima facie errors. It read like a poorly written fairy tale. For a moment I didn’t believe it was a real confession. In fact, it was a false confession made up by the police. Because the confession was a fabricated document, the police witnesses blundered, trying to cover up [for] each other in the court when I cross-examined them. But the suspect was a real Tiger. The day that the judge rejected the confession, the suspect told me that he was a Tamil Tiger and he was caught by the army in the battlefront. He had somehow survived the torture and long-term imprisonment. He might have gone back to the Tigers when he was released.79

Such pieces of evidence further demonstrate the Tigers’ intransigent resistance to submit to their enemy. How can we explain the existence of such conflicting narratives of the war – the confession versus the cyanide strategy? What is clear from the foregoing discussion is that these contrasting narratives were sourced and/or developed by the two adversaries in this war (the terrorist and the state) and their agents, followers or sympathisers. Hence, these dual versions of the story appear to have created contrasting ‘realities’ for either party to this war – the opposing militarised constituencies who pledged their allegiance either to the state or the terrorist and unconditionally accepted the official narratives promoted by their respective leaders. Moreover, these contrasting accounts have reached into court testimonies and trials, with both parties claiming victory and both sides rejecting defeat. The legends, orations, and accusations emerging from these parallel realities appear to have been aimed at signifying superiority over the enemy; hence, the confession and the cyanide capsule can be seen as the symbolic representations of these parallel realities of the long-term war. Are these contrasting narratives grounded in individuals’ fantasies of fame and recognition, or institutionalised fantasies deeply embedded in the organisational subcultures of the terrorists and the police? It is possible that these opposing narratives fantasised the victories of either party because 78 Field interviews, Colombo (6 July 2007). 79 Field interviews, Colombo (June 2007).

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neither side was able to defeat its enemy throughout the stalemate war that idled for three decades. It is also possible that these fantasies could have led to the creation of fictions: the police fictionalising confessions and the Tigers fictionalising their war legends. What is most interesting is that this proposition of fantasy narratives correlates with the genre of ‘fantasy confessions’ – a term coined by forensic psychologists to describe false confessions given by people suffering from mental health problems that prevent them from distinguishing fact from fiction.80 Fantasy confessions are also seen as a subcategory of ‘voluntary false confessions’ given by suspects (who know that the content of their statement is false) seeking to satisfy a pathological need for fame, acceptance or recognition.81 It could be argued that fantasy confessions are based not only in the confessor’s desire for fame in relation to committing a crime, but also in part on the police officer seeking fame or recognition for capturing the criminal. The act of narrating an individual or institutional fantasy on the part of the police undoubtedly necessitates violence or some level of oppression of the suspect in order to seek their full compliance to sign the confession. Little research has previously been conducted from the point of view of the perpetrators of such violence or that examines the psychosocial factors that underlie such fantasies or fascinations.82 The scope of this research does not encompass such psychosocial or anthropological aspects of the problem; however, the proposition about the fantasies embedded within confessionary narratives will be revisited in the upcoming chapters. Here it is important to note that with its military defeat, the Tigers’ military subculture vanished from the Sri Lankan political landscape; hence, this chapter did not include materials produced in the aftermath of the Tamil Tigers’ defeat. The upcoming chapters continue to explore the key theme of this research – the multiple and competing versions of the truth about the Tigers’ confessions – through an examination of narratives drawn from multiple sources. The following chapter aims to explore the version of truth produced by the Sri Lankan Police, manifest in their confessionary texts, while drawing attention to research conducted by criminologists and linguists in this area. 80 See Greer, ‘The right to silence’, p. 110. Also see Cloud et al., ‘Words without meaning’. 81 Kassin, ‘True or false’, p. 178. 82 Eyal and Sabine suggest that, if anthropologists want to understand violent acts, they need to study the perpetrators of such acts and not only their victims. ‘In most of the scholarly literature, violence is seen as anomalous and disruptive – as the reverse of social order’; in contrast, ‘violence also be understood as an object of fascination, enjoyment, and celebration’. See Eyal and Sabine, ‘The celebration of violence’, p. 540.

3

Facts, falsities, and fictions

Focusing on the systems established by the LTTE to prevent its members from being arrested alive, the discussion presented in the previous chapter cast significant doubt on the validity of the state’s mass prosecution of the Tamil Tigers in Sri Lanka. In contrast, this chapter aims to explore the validity of the mass prosecution strategy by focusing on the systems established by the police to gather evidence against the terrorists. This chapter will concentrate on the text of the confessions, rather than police interrogation methods or court trials. Accordingly, the chapter will probe the official narratives of the state, as presented by its agents, the police, in asking the question: Can the authenticity of Tigers’ confessions be determined by linguistic and narrative analysis methods? This enquiry will involve investigating the process used by the police to convert oral narratives into written narratives, identify the templates used to construct the text, analyse the structure of confessions and identify other common elements related to the content. This will require exploring the ‘institutional voice’ that results from the co-narration of the confessionary statements by the police, and investigating whether this voice influenced or altered the voices of the suspects. In this exercise, a methodology based on narrative analysis techniques will be devised and applied to distinguish true confessions from false ones. This methodology has been developed outside the system of criminal justice procedures, and adopts an alternative strategy to that of conventional legal discourse in determining the guilt of a terrorist. The methodology used in this chapter includes a comparative analysis of a sample of 28 confessions. In addition, four confessions from the sample will be analysed in detail: the confessions of two convicted rebels and those of two acquitted suspects. Because a written statement elicited from a suspect is given ‘supremacy’ over oral evidence in the criminal justice system,1 the confession possesses a great deal of persuasiveness and conclusiveness as a piece of evidence. Thus, the written statement becomes an authoritative text that can be used against the witness – the original source of the information. Therefore, once a confessionary statement is written and signed by a suspect, it is almost impossible to question its validity beyond probing the statement as part of a laborious court hearing. Even in Western democracies, courts have adopted the attitude that if a suspect signed a piece of paper waiving his rights, any 1

Rock, ‘The genesis of a witness statement’, pp. 46-47.

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subsequent confession should be automatically admitted into evidence; hence, any questioning of the truthfulness or reliability of a confession then shifts to the ‘background’.2 In other words, text written on paper becomes an instrument used to determine the status of a suspect (that is, verifying whether the suspect is a terrorist and determining their guilt). A narrative analysis exercise is proposed on the rationale that if the evidential authority of a confession is constructed by written narratives, the same authority can be questioned and rejected by deconstructing these narratives.3 It should be noted that establishing an appropriate methodology to deconstruct such narratives and determine the truthfulness of a confession is a complex exercise in a cross-disciplinary context, because it involves using polysemic criteria which are sometimes unrelated. The polysemic criteria that will be adopted in this exercise are devised using triple criteria,4 which include the concepts of legal truth, semantic truth and semiotic truth. The use of these concepts is justified on the basis that the authority of the confessionary narratives is derived from three perspectives: the legal, semantic and semiotic. The legal aspect includes the attribute of admissibility under the law of evidence; therefore, it involves checking whether the document carries evidential value prima facie, and whether the correct evidential ingredients were obtained using the correct process. The semantic character of a statement establishes a relationship between the facts presented in the document and the actual events as they occurred in the real world. The semiotic element includes the syntactical presentations, and the spatial and temporal combinations within the narratives. The process of reducing an oral confession to a written text brings these three dimensions together within a single tangible product, crystallising the self-incriminatory acts and the criminal intentions of the offender. The three perspectives provide the best criteria for assessing the truthfulness of text-based confessionary narratives: (a) legal criteria based on the concept of ‘legal admissibility’ under the law of evidence; (b) semantic criteria based on the concepts of ‘plausibility’ and ‘probability’, which establish whether the stories in the confession could have taken place in reality; and (c) semiotic criteria based on the syntactical, spatial, and temporal unity of the narratives, determined by investigating the linguistic elements using forensic linguistic techniques. This does not mean 2 Solan and Tiersma, Speaking of Crime, p. 91. 3 See Landowski, ‘A note on meaning’, p. 158. Landowski says that legal discourse and legal practice is a ‘complex combination of [the] semiotic process’. This nexus between the law and semiotics will be investigated to deconstruct the narratives of the confessions. 4 The author has devised the ‘triple criteria’ for the purpose of analysing confessionary evidence.

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to suggest that these three criteria of truth are unequivocal and independent. The boundaries of legal, semantic or semiotic truth could blend and merge on some occasions. Further, the court may adopt a criterion other than legal, such as the use of linguistic evidence to determine a suspect’s guilt.

Confession templates Criminal procedure laws in many Western countries require the audio- or video-recording of police interviews, and what is said by the accused is presented to the court in direct speech form. In other words, the court expects to receive an ‘uninterrupted locution’ of the interview.5 The criminal procedure law6 of Sri Lanka only requires that a statement given to a police officer be reproduced in written form. Neither resources nor provisions exist in Sri Lanka for the police to make audio or video recordings of interviews. Computers are extremely scarce in police stations and only a handful of officers in the police service possess even the basic knowledge required to operate one. To date, confessions are still typed using mechanical typewriters. The average confession of a Tamil Tiger is submitted as a document of 3-4 pages of A4 size or legal size7 paper typed in Sinhalese. The structure of and method of recording confessions have not changed dramatically since the introduction of the counter-terrorism laws. According to the analysis of the sample, it is clear that the Tigers’ confessions are constructed using a single template comprised of three parts: (a) pre-confessionary introduction, (b) free confessionary narratives, and (c) post-confessionary certification. A typical confession of a Tamil Tiger is evinced by approximately four key police witnesses – a senior police officer above the rank of an ASP, the typist, the interpreter, and the custody officer – all of whom are summoned to testify against the suspect in court. The narratives are presented in the first-person voice of the ASP, followed by sections narrated in the voice of the suspect, the interpreter, and the typist. The detailed template includes the following: 1 Pre-confessionary introduction (this is narrated in the first-person voice of the ASP): – The first line presents the date, time, and venue details. – The suspect is brought before the ASP by the custody officer. An interpreter and a typist are summoned to record the conversation. 5 The Police and Criminal Evidence Act 1984 discussed by Coulthard, ‘Whose voice is it?, p. 19. 6 Section 109 of the Code of Criminal Procedure 1979 (which repealed Act No. 52 of 1980). 7 A4 size (210mm x 279mm) and legal size (210mm x 355mm).

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– The ASP asks whether the suspect wants to give a confession and the suspect affirms. – The ASP cautions the suspect and gives them time to think. – After a certain period of time (anywhere between 10 minutes and several days), the suspect is brought before the ASP for a second time. – The interpreter and the typist are summoned. – The suspect reiterates that he wants to give a confession. The ASP cautions the suspect and instructs the interpreter to interpret the suspect’s confession, and instructs the typist to type. 2 Free confessionary narrative (this is narrated in the first-person voice of the suspect): – The suspect begins the confession in his/her own words, and this is recorded in the first-person voice of the suspect. The suspect gives a brief outline about his/her family, education, and the circumstances leading to him/her joining the Tamil Tigers. – The suspect then describes various offences that s/he has committed. – The suspect concludes the confession, sometimes saying, ‘I admit guilt for…’. 3 Post-confessionary certification (this part is narrated in the first-person voices of the suspect, the ASP, the interpreter, and the typist): – The ASP orders the interpreter to explain the content of the confession to the suspect. – The interpreter explains the content of the confession in Tamil. – The typist corrects any typographical errors and mistakes of fact as identified by the suspect. – The suspect signs the confession, agreeing that the text reflects a true account of his/her confession. – The ASP signs and certifies that s/he accurately recorded the confession and that the content of the confession was explained to the suspect through the interpreter. – The interpreter signs the confession, certifying that s/he accurately interpreted the confession. – The typist signs the confession, certifying that s/he accurately typed the confession. – The ASP certifies the confession, stating that the suspect has been handed over to the custody officer (on some occasions the suspect is brought before a medical officer to receive a report certifying that the suspect was physically and psychologically fit to give a confession).

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This template can be further analysed by comparing the two confessions8 of Veerakarthi and Alagayya. The first paragraph (pre-confessionary introduction) of Veerakarthi’s confession reads: On 26 September 1997 at 07.45 hours in my office at Colombo Investigation Division, No 50 Gregory Road, Colombo 7. Reserve Police Constable 29248 Jayadeera who is currently on duty has produced the suspect Veerakarthi Vemilanadan at this occasion. I asked the support of Police Constable 15506 Rahim because the suspect is not comfortable in understanding [the] Sinhalese language. This is the suspect who said that he wanted to give a confession when he was produced before me on 25 September 1997, to whom I explained the facts and sent away asking to come back to me after taking time to think. He is wearing a blue and yellow sarom with square shape designs. I asked him to sit and enquired whether he has changed his decision about giving a confession to me. He said that he had not changed his decision and still wants to give a confession. Hence I asked the suspect again whether he was induced, influenced or promised [anything] by anyone. To my questions, he answered that there were no such influence. I explained section 16 (1) of the Prevention of Terrorism Act and section 24 of the Evidence Ordinance again to the suspect and I explained that the statement that he is not9 [sic] giving could be used against him one day in a court of law. Once I explained this, I asked him again whether he wishes to give a confession and he said that he wished to give a confession. Now I am getting Woman Police Constable 626 Shamini to type the suspect’s confession.10 8 This is a verbatim translation of a segment from the confession originally recorded in the Sinhalese language. The number of sentences in the original confession has 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 also been reproduced in these verbatim translations. The author’s comments are provided in square brackets and signatures or handwritten notes of the confession are provided in italic font. The names of towns, camps or leaders cited within the confessions are changed in order to protect the identity of the narrator. The suspects are identified by pseudonyms. 9 The words ‘not giving’ are indicated by adding a single Sinhalese letter which could be a typographical error, and it is assumed that the intended meaning here is ‘giving’. 10 Copied and translated from the dossier. The 27-year-old suspect, Veerakarthi Vimalanadan, a resident of Jaffna, was arrested on 2 September 1997 in Colombo. He was later transferred to a remand prison where he remained without bail until his case was concluded. He was served with indictments in late 1999 at the Colombo High Court. Veerakarthi’s lawyers challenged the

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Veerakarthi’s confession continues in the second part (the free confessionary narrative): After sitting for the GCE Ordinary Level exams in 1985, I didn’t continue schooling. Those days Jaffna was under the control of Tamil Tigers. They fought with the Sri Lankan police and the army to establish a separate nation. Because I liked the Tigers, I joined them in January 1986. After joining them I received training in Raviraj base at Valvettithurai. I was trained with 125 more members for two months on how to attack the enemies and destroy the camps of the enemies.11

Veerakarthi then describes how he was engaged in another attack against the army in 1987, in which he sustained an injury to his hand. He received treatment at Jaffna Hospital for two days and then at a private medical centre. He did not return to the military front after his injury, instead he returned home to be a farmer. In 1994, the Tigers summoned him and appointed him as a secret agent in Colombo where he was subsequently arrested. He concludes: ‘I supported [the] Tamil Tigers because they were going to establish a separate nation for Tamils. That’s all I have to say’. Veerakarthi then signs next to this statement, which is followed by the certification of the ASP, who writes: ‘Explained in Tamil. Admitted as correct’. Then the ASP writes: ‘I hereby affirm that I honestly and correctly recorded the statement’. This follows similar statements with signatures that certify the involvement of the interpreter and the typist, and a final statement by the ASP that he is handing the suspect over to the custody officer. The confessions in the sample under examination here appear homogenous and mass-produced. An identical storytelling structure and style can be clearly discerned across these confessions, and they share a similar storyline, characters, and language, including vocabulary, and a rather emotionless, official tone. The same police officers’ names (those who run the counter-terrorism units in Sri Lanka) appear in more than one confession because they routinely arrest, detain, and interrogate Tiger suspects. The assertion that the police are using a single, standardised template for all terrorist confessions can be further supported by a comparison between the confession on the ground of involuntariness. The judge rejected the confession on the ground that the prosecution was unable to prove the confession beyond reasonable doubt and released Veerakarthi in June 2003, nearly six years after his arrest. 11 Copied and translated from the dossier.

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pre-confessionary narratives of Veerakarthi’s confession and the following confession of Alagayya Karunakaran: 1 May 1998 at 09.20 hours in the operational office of the Senior Superintendent of Police, Batticaloa. Alagayya Karunakaran, 32 years old, Sri Lankan Tamil, Hindu, address, Baradi Road, Eruvil, Kalawanchikudi, married who is held under the Emergency Regulations has been produced before me by Sub Police Inspector Bandara of Batticaloa Operational and Intelligence Division. Because he [the suspect] is unable to speak or understand the Sinhalese language I am getting the support of Reserve Police Sergeant 15422 Anvar to interpret his confession from Sinhalese to Tamil and Tamil to Sinhalese. Through Reserve Police Sergeant 15422 Anvar, I asked from the suspect whether he likes to give a confession. Through Reserve Police Sergeant 15422 Anvar, the suspect informed that he needs to give a confession and he voluntarily came forward. After he informed this, I explained to him that his confession could be used against him as evidence in a court or any judicial proceedings and it is legal [to use his confession as evidence]. I gave time for the suspect to think about this but he is still maintaining the previous position and he says that he needs to give a confession; therefore, I handed over the suspect to Sub Police Inspector Bandara and advised [him] to produce the suspect before the Judicial Medical Officer of Batticaloa Hospital and to obtain a report on the physical and mental health conditions of the suspect.12

Apart from a few differences, such as sending the suspect Alagayya to the judicial medical officer, this confession and that of Veerakarthi are narrated within the framework of an identical template. The only part that may be unique in any particular confession is the middle part, or the free confessionary narrative, in which the suspect provides his/her personal details and history, and describes the offences committed. One could argue that, in the context of civil war, the police will tend to carry out mass-scale evidence-gathering missions; therefore, massproduced statements based on templates may naturally lack iconicity. For example, all police statements begin in a similar manner, stating the date, time and venue, and introducing the officer recording the statement. These similarities could be the result of institutional practices that dictate 12 Copied and translated from the dossier. Further details of the case were not available in the dossier.

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the style or format of such documents, rather than because officers are deliberately withholding or distorting information. Templates are widely used by police all over the world in order to standardise evidence-gathering mechanisms. For example, Gudjonsson presents a template which is slightly different from that used for the Tigers’ confessions, which includes four parts: (a) ‘orientation’, which states the purpose of the interview; (b) ‘listening’, which allows the witness to present a free recall of their story; (c) ‘questions and answers’, which reduces and clarifies ambiguities; and (d) ‘advice’, which includes the final certification.13 On the other hand, if the similarities between confessions extend to areas beyond those determined by the template (for example, if the verbatim accounts of two suspects appear to be overly similar), this could be grounds for arguing that they were fabricated (because of the improbability of two or more suspects using very similar syntactical structures and vocabulary in a free and voluntary admission).14 For these reasons, the criterion of the originality of narratives can be applied as an important indicator of the credibility of evidence. Scott argues that a document can be original only if it has a ‘perfect identity’ and is not ‘mass-produced’, and that the quality of ‘sameness’ takes away its iconicity and thereby its evidential credibility.15 The author adds that the credibility of evidence ‘falls apart’ when iconicity is damaged.16 Segments of confessions presented so far demonstrate that the mass-produced confessions of Tigers lack this iconicity. In order to isolate the causes of ‘sameness’ among these confessions and determine whether their similarities are caused by the use of templates or by the fraudulent mass production of evidence, further in-depth assessments need to be conducted. This will be undertaken in the later part of this chapter.

The institutional voice As discussed earlier, police templates may create a dominant ‘institutional voice’ in statements given to police, producing a degree of homogeneity among the materials of evidence. Despite the fact that this institutional 13 Gudjonsson, The Psychology of Interrogations, Confessions and Testimony, pp. 8, 9. 14 Compare the two confessions in the Appendix where such ‘improbable’ similarities of verbatim accounts can be observed. 15 Scott, ‘In search of the truly fake’, p. 311. 16 Ibid., pp. 311-312.

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voice could downgrade the credibility of the materials of evidence, templatebased written statements continue to be widely used in the criminal justice system for a number of reasons. Unlike oral narratives, a written statement ‘purifies’ and ‘condenses’ the criminal proceedings17 because the static nature of the written text eliminates any ambiguities within the story. During the process of converting an oral narrative into a written narrative, the template provides guidance to police officers by enabling them to meet certain standards or requirements of the criminal justice system. Further, the police anticipate the future use of their written statements in court hearings, so they ‘plan and construct’ the materials of evidence in the process of converting oral narratives into written statements.18 Accordingly, a text of a confessionary statement has two functions: to compile a factual record of interactions between the police and the suspect, and to present these interactions at a court proceeding.19 This means police officers are aware at the time of the primary interaction with the suspect that the written record of the suspect’s statement may be used as evidence in court; therefore, it is specifically designed as a piece of evidence. In other words, these records are consciously constructed with the future audience in mind.20 Thus, it could be argued that when preparing these confessionary statements, the police seek to pre-empt any counterclaims, defences, and allegations, such as claims of involuntariness. This argument leads to a number of questions: Could the institutional voice of the template-based written narratives suppress the suspect’s voice and thereby suppress the truth? As the purpose of incriminating the suspect is predetermined, could truth in the confession be suppressed by police officers in order to actualise their predetermined intentions? If truth is suppressed in this manner, are such suppressive elements manifest in the content and structure of the written narratives? According to research conducted by linguists and criminologists, the police’s institutional objective of incriminating suspects is strongly evident in the statements of evidence they prepare, which suppress the individual 17 A confession has presence in the three main entities of the adversarial system, which are identified as ‘materials of criminal proceedings’: courtrooms, files and stories. It could be argued that a confession carries a narrative that includes a story by which the accused self-incriminates and admits their guilt. It is filed in dossiers and referred to as a source of evidential information. It is heard in the courtroom in order to determine its admissibility and thereby the guilt of the offender. See Scheffer, ‘Materialities of legal proceedings’. 18 Gibbons, Forensic Linguistics, p. 19. 19 Coulthard, ‘Whose voice is it?’, p. 21. 20 Ibid., p. 21. This proposition of ‘constructing’ evidence will be further discussed in the next chapter.

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suspect’s voice and replace it with the institutional voice. According to Gibbons, in many police statements at least 70 per cent of the interview seems to have disappeared.21 He adds that the police ‘co-author’ the suspect’s statement by changing the original transcript, standardising, planning, and editing; thus, the original voice of the narrator is reproduced with an impersonal tone, and the final document contains ‘omissions or loss’ of information from the original account.22 Den Bore asserts that the ‘institutional objectives’ of the police may be focused on ‘narrative coherence’, and that they therefore use strategies to ‘control’ narrative coherence in order to remove ambiguities, discrepancies, contradictions or incompatibilities. She adds that the police’s control may be extended to ‘manipulating the narrative in favour of coherence’.23 Based on the analysis of the sample used in this research, it appears that the confessions of Tigers are also subjected to control, manipulation, and even distortion. The dominance of the institutional voice over the suspects’ voices is apparent in the use of autonomous text and certain syntactical constructions such as paraphrasing, and the use of the passive voice and sophisticated or formal vocabulary drawn from the police bureaucracy. For example, Alagayya’s confession does not include a verbatim narrative that describes the scenario. His willingness to give a confession is not provided in his own words; instead the statement reads: ‘Through Reserve Police Sergeant 15422 Anvar, the suspect informed [me] that he needs to give a confession and he voluntarily came forward’. The use of this form of syntactical construction of the statement (which is not a transcription of the suspect’s oral communication in direct speech form) serves two purposes: (a) the construction simplifies the facts that prove the voluntariness of the suspect’s confession; and (b) it omits additional information, informal expressions and nuances that may provide or inform any counterclaims for the defence. In other words, the statement is constructed so as to provide the minimum amount of information required to prove the voluntariness of the suspect’s confession, omitting all information that does not support the prosecution. By planning and constructing confessions, the police can manipulate the narratives by compiling an autonomous text that could be sustained as a self-reliant piece of evidence. A suspect may find it almost impossible 21 Gibbons, Forensic Linguistics, p. 31. 22 Ibid., p. 31. 23 See Den Bore, ‘Deictic references’, pp. 301-302. Also see Adams and Javis, ‘Indicators of veracity and deception’, p. 2; Hill, ‘Identifying the source of critical details in confessions’, p. 24; and Yamanaka, ‘A text analysis of confessions’, p. 41.

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to bring exculpatory evidence against such autonomous text because the statement refers back to the earlier narratives of the same text rather than to materials in the outside world.24 For example, the ASP reaffirms the previous assertions of Alagayya in saying, ‘he was still willing to give a confession’, and the ‘suspect is still maintaining the same position’. This textual autonomy assists the police not only to assert their version of the statement as credible, but also to extract more evidence within the document to prove these assertions. In addition, the autonomous text of the confession is embodied with ancillary evidence to prove its legal admissibility. For example, in the ‘pre-confessionary introduction’ of Alagayya’s confession, the ASP maintains the chronological order of the narrative by recording the start and finish times of the interactions with the suspect, which enables the off icer to comply with the legal requirement to give the suspect adequate time to contemplate his/her decision to confess. The planning of a confessionary statement will involve the inclusion of lexical and syntactical constructions that prove the reasonableness or impartiality of the officers and the voluntariness of the suspect; therefore, these constructions could mislead the reader.25 For example, the statement for Veerakarthi indicates that the ASP explained to his suspect several times the consequences of submitting a confession, in order to demonstrate the ASP’s fairness. In the following excerpt, the ASP uses the term ‘I’ seven times to emphasise that he was proactive in ensuring fairness, and that he ‘explained’ the consequences of confessing, and ‘enquired’ and ‘asked’ ‘again’ whether the suspect was persuaded by anyone to give a confession: This is the suspect who said that he wanted to give a confession when he was produced before me on 25 September 1997, to whom I explained the facts and sent away asking come back to me after taking time to think […] I asked him to sit and enquired whether he has changed his decision about giving a confession to me. He said that he had not changed his decision and still wants to give a confession. Hence I asked the suspect again whether he was induced, influenced or promised by anyone. For my questions, he answered that there were no such influence. I explained section 16 (1) of the Prevention of the Terrorism Act and section 24 of the Evidence Ordinance again to the suspect and I explained that the 24 Gibbons, Forensic Linguistics, pp. 63-65. 25 See Coulthard, ‘Whose voice is it?’, p. 21.

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statement that he is giving could be used against him one day at a court of law. Once I explained this, I asked him again whether he wished to give a confession and he said that he wished to give a confession.26

The truth of confessions could also be suppressed by the power imbalance between the suspect and the police officer because the police are able to control to a significant degree the theme of the interaction in interviews, and the form in which it is recorded.27 As Gibbons has noted, the power of the police officer is rooted in either ‘individual’ sources, such as their personality or skills, or their status within the institution, such as their position or rank.28 One of the most effective ways in which police officers can exercise their power over a suspect is to demand answers to questions. Gibbons argues that power asymmetries can affect the content of the less powerful person’s answers, as the form in which a question is put to a witness exerts a strong influence on the quality of the answer given.29 Questioning also allows the police to plan the statement by posing particular questions in a particular order. The information embedded in the question sometimes suggests a particular, predetermined answer. The more information the officer includes in the question, the less control the suspect has over the information they can provide. For example, a research paper that analysed the audio-taped interviews of a murder investigation identified that out of the total 6739 words spoken in the interview, the police detectives spoke 4207 words (nearly two-thirds), and the suspect spoke only 2532 words. The researchers added that 62 per cent of the questions were closed ended and the suspect accepted the details offered in 43 per cent of the questions.30 In Alagayya’s confession, the ASP states that ‘the suspect informed that he needs to give a confession and he voluntarily came forward’. Here the ASP omitted both the questions and answers involved in this interaction, preventing the reader from knowing the exact words spoken by either party. This could also shroud the tone of the expression, such as the threatening tone of the interrogator. The validity of using interpreters to record statements has been called into question by some scholars and lawyers. Research conducted on immigration interviews in the US found that the interpreters exerted an extraordinary level of influence and ‘co-constructed’ the text, rather than 26 Copied and translated from the dossier. Emphasis added. 27 Coulthard, ‘Whose voice is it?’, p. 20. 28 Gibbons, Forensic Linguistics, p. 99. 29 Ibid., p. 93 (citing Loftus, Eyewitness Testimony, pp. 77-79 and 90-99). 30 Hill, ‘Identifying the source of critical details in confessions’, p. 29.

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providing a ‘monologic’ narration of the ‘one-way transfer’. Therefore, it has been suggested that engaging an interpreter to facilitate communication between the primary participants in a police interview may constitute a ‘radical shift’ from the dynamics of the ‘monolingual interview’.31 Understandably, recording a statement in a language foreign to the suspect could open avenues for miscommunication,32 further strengthening the institutional voice in confessionary statements. This could be exacerbated by employing a police officer to act as an interpreter, insofar as a police interpreter lacked impartiality and could impose additional pressure to suppress the suspect’s voice. In this research, no confession was found to have been interpreted by an impartial third person. Although the text of the Tigers’ confessions examined in this study provides very little indication of the level of involvement of police interpreters, the interpreters’ skills and impartiality have been questioned by the defence lawyers during crossexamination in cases against Tiger suspects. In many cases, the defence lawyers were able to prove that the interpreters had a limited ability to communicate in the Tamil language, as they were educated in Sinhalese. Further, doubts have been raised about the legality of the custody arrangements for the suspects because detaining a suspect in a location that is frequently accessed by the investigating or interpreting officers could leave suspects vulnerable to pressure placed on them by the officers, either prior or subsequent to the recording of the confession. In many cases the same interpreter was involved in both the initial investigations and recording the confession. For example, the interpreter who assisted in the recording of the confessions of both Nallaratnam and Sellapulle was also involved in the initial interrogation in each case, prior to recording the confessions.33 This means the interpreter already had some knowledge of the suspect before the confession began, and could have manipulated the narratives to reflect his knowledge or bias when recording the confession. The confessing suspect could also be further disadvantaged if the initial investigations involved oppressive interrogation methods (these problems are further discussed in Chapters 4 and 5).

31 Russell, ‘Three’s a crowd’, p. 117. 32 Gibbons, Forensic Linguistics, pp. 211-221. Also see Russell, ‘Three’s a crowd’, p. 117. 33 The statement prepared after the initial interrogation is known as the ‘first statement’. Every indictment that includes confessionary evidence also includes a first statement. The first statement cannot be used as a substantive piece of evidence. Due to a lack of availability of interpreters, the first statement and the confession of the same suspect were interpreted by the same interpreter in these cases.

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Despite the existence of these factors that signif icantly reduce the credibility of the confessions, the dominance of the institutional voice within these confessionary narratives is not suff icient to completely repudiate the validity of the mass prosecution strategy against Tigers. This is because this dominance could be the result of two different factors: the police relying on formats and templates to construct written statements, or the police using existing formats and templates to fabricate written statements. A more accurate assessment of the validity of these written statements can be undertaken by applying the legal, semantic, and semiotic criteria.

Semantic criteria The concept of semantic truth establishes connections between the narratives of a confession and the external world. As described by Twining: ‘true statements are statements which correspond with facts, i.e. real events and states of affairs in the external world’.34 According to Currie, the ‘relational properties’ or ‘semantic properties’ of a text refer to the truth, and a text will be true or false insofar as the sentences that compose it are true or false. Currie adds that ‘truth-value’ and ‘reference’ are characteristics that determine the text’s ‘relation’ to the world, and a semantically truthful text must refer to ‘real people and places’.35 Accordingly, a confession passes the criteria of semantic truthfulness if it does not contradict, and can be corroborated by, the state of affairs in the external world. Unlike legal truth, semantic truth can either be excluded from or included in criminal justice proceedings depending on the respective rules of evidence, which mark the distinction between the two types of criteria (legal or semantic). For example, the rule against ‘hearsay evidence’ disallows the submission of certain semantic facts of the outside world such as the quoting of a third person by a witness in his/ her testimony.36 On the other hand, semantic criteria may correspond to legal criteria. For example, according to the corpus delicti rule, an accused cannot be convicted on the basis of his/her own confession alone – there must be corroboration or independent evidence (outside the confession) to

34 Jackson, Law, Fact and Narrative Coherence, pp. 20-21 (citing William Twining). 35 Currie, The Nature of Fiction, p. 4. 36 Peiris, The Law of Evidence in Sri Lanka, p. 42.

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prove that the crime occurred.37 Here the court requires the prosecution to submit evidence from the external world to prove that the offences described in the confession have indeed taken place. However, the rule does not require the prosecution to adduce external evidence that the offences were committed specifically by the defendant. This means that, in Veerakarthi’s confession, the prosecution had to submit external evidence to prove that several solders were killed in Valvettithurai yet was not required to submit external evidence to prove that Veerakarthi attacked the solders. Accordingly, semantic truth could be suppressed to a certain degree in the criminal justice process in this case, because only certain aspects of the state of affairs relating to the crime had to be proved in court by independent evidence. A significant number of facts that connect with the external world are covered in the middle section, or the ‘free confessionary narratives’, of a typical confession of a Tamil Tiger. Veerakarthi provides the following account in his confession: After the training I joined the Razic Base and worked for about eight months. During this period we have ambushed the Sri Lankan army about five times at Valvettithurai. Later we came to know that several soldiers died in these attacks. These days the name I was given by the organisation was ‘Radan’. Later in 1997 I went along with a team led by ‘Susei Mahathaya’ and attacked a group of soldiers in [the] Thondamanaru area.

The semantic truthfulness of this statement could only be proved by verifying the relevant facts outside the confession, and seeking answers to the following questions: (a) Did the Tigers run a base called Razic in Jaffna in around 1986? (b) Are there any records of a group of soldiers being attacked by Tamil Tigers at Valvettithurai? (c) Did Veerakarthi take part in this ambush? and (d) Are there any records of a Tiger leader by the name of Susei Mahathaya? It is not always possible to answer such questions in a court of law in the context of a civil war. Summons of the courts may not reach civil witnesses in war-torn areas, and documentary evidence may not exist. The information vacuum resulting from the stark polarisation of warring communities can create barriers to the gathering of legally admissible evidence to prove the semantic truth of these types of confessionary statements. Further, news of major incidents in the war is 37 Solan and Tiersma, Speaking of Crime, p. 91.

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reported in the media or circulated among police officers by word of mouth. Thus, defence lawyers can argue (and have argued in many cases) that the police fabricate confessions by incorporating their pre-existing knowledge on certain incidents and imposing such knowledge onto their suspects. This means that semantic criteria contribute little to the verification of the truthfulness of Tigers’ confessions because of a lack of independent evidence that either proves or disproves the content of confessions.

Legal criteria According to Jackson, truth in the legal sense is recovered from the ‘criteria of truth’, which are based on rules of evidence such as proving beyond reasonable doubt. He adds that determining legal truth is focused on the ‘process’ (of gathering evidence) rather than on the ‘content’ of evidence.38 A legally truthful confession, therefore, must be legally admissible and comply with the rules of evidence – rules that allow only voluntary confessions. This explanation could be elaborated as follows: if the piece of evidence is admissible then it becomes a fact in the proceedings, and this fact thus becomes a piece of truthful information in the eyes of the law. Section 24 of the Evidence Ordinance states: ‘A confession made by an accused person is irrelevant in a criminal proceeding if the making of the confession appears to the court to have been given caused by any inducement, threat or promise’. This means legal truth is a term of commendation or endorsement based on the criterion of the rule of evidence,39 in contrast to the concept of semantic truth. It is important to note that both innocent and guilty suspects dispute the voluntariness of their confessions at the trial stage and this does not necessarily mean that the ‘inadmissibility’ of a confession makes it ‘semantically untrue’. In other words, the confessions could be semantically true accounts of self-incriminating materials that do not pass the test of evidential ‘admissibility’ under the rules of evidence. Conversely, ‘semantically untrue’ confessions may pass the test of evidential admissibility depending on the strength of the narratives, which may convince the court of the guilt of the accused. Thus, innocent people may be convicted on false confessionary evidence. 40 38 Jackson, ‘Truth or proof?’, p. 265. 39 See Patterson, Law and Truth, p. 152; and Jackson, Law, Fact and Narrative Coherence, p. 9. 40 To further elaborate this, Laudan attempts to contrast truth with legality using three other concepts: ‘correctness’, ‘validity’ and ‘error’. He asserts that evidence does not define what is

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Based on the case law related to confessions recorded under the PTA or Emergency Regulations in Sri Lanka, 41 which will be further discussed in Chapter 5, a written confession needs to have the following components to be legally admissible: – The suspect’s confession must be given voluntarily, which also means that the confession was recorded in an environment free of any inducement, threat or promise. The ASP (the officer who records the confession) must clarify whether the suspect is giving the confession voluntarily. – The ASP must caution the suspect by explaining that the confession may be used as evidence against the suspect. – After cautioning, the suspect must be given time to think further (cooling time) about his/her decision to confess. – If the suspect wants to confess after s/he has taken the time to think further, his/her confession should be properly recorded. The ASP is permitted to ask questions as part of this process. – If the statement was not recorded in the suspect’s first language, the suspect should be informed of the content of the written statement before signing the confession. – The suspect and the recording officers, including the ASP, typist and interpreter, must sign the statement. In Sri Lanka, the court will most likely reject confessions that lack any of these elements. For example, the High Court rejected Veerakarthi’s confession, indicating that a confession must include narratives that evince all the interactions between the suspect and the police officers.42 One of the important interactions missing from Veerakarthi’s confession was that the event took place on 25 September 1997, one day before the recording of the confession. Although the ASP refers to this event, the details have not been put in writing true or false about a crime in the criminal justice system, and the verdict is correct as long as ‘it squares with the evidence presented in the trial’ (without referring to what happened in the ‘real world’ outside the court). Laudan adds that a verdict of guilty is valid provided that the evidence presented at the trial establishes, to the relevant standard of proof, that the accused person committed the crime. Laudan then contrasts truth with error caused by a ‘false inculpatory finding’ or a ‘false exculpatory finding’. See Laudan, Truth, Error, and Criminal Law, pp. 10-13. 41 See Mariyadas v State ([1995], 1 SLLR, 106), Nallaratnam Singarasa v Attorney-General (S.C. SrL [LA] No 182/99) unreported and Sellapulle Mahendran (HC 6894/94) unreported. It should be noted that there seems to be no clear authority in case law on these ingredients. However, according to the field observations, interviews with legal practitioners and archival research, the absence of any of these ingredients could make the prosecutor’s job of proving guilt difficult. 42 The order of the High Court case, June 2001.

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and certified by the interpreter and the ASP himself; the confession merely states: ‘This is the suspect who said that he wanted to give confession when he was produced before me on 25 September 1997, to whom I explained the facts and sent away asking come back to me after taking time to think…’ Based on the criteria of legal admissibility outlined above, the elements that make a confession inadmissible can be enumerated as: (a) oppressive custody arrangements that could influence the voluntariness of the suspect’s confession; (b) oppressive police behaviour including promise, inducement or threat; (c) failure to establish the voluntariness of the suspect’s confession by clarifying whether the suspect was oppressed; (d) failure to caution the suspect; (e) failure to give the suspect adequate time to contemplate his/ her decision to confess; (f) failure to document all the interactions between the suspect and the police officers; (g) if the confession was recorded in a language not understood by the suspect, failure to explain the content of the confession to the suspect before obtaining the suspect’s signature; and (h) failure to include the signatures of all parties involved in the recording process. Using these criteria, the legal truth of the confessions of Alagayya and Veerakarthi can be examined. The counter-terrorism laws and the general criminal law of Sri Lanka allow the recording of a confession in police custody. 43 However, the environment in which the confession is recorded has a significant impact on the legal admissibility of the confession, because an oppressive environment (in which the suspect is exposed to promise, threat or inducement, as per section 24 of the Evidence Ordinance) could affect the voluntariness of the confession. In Alagayya’s confession, the ASP describes the environment provided to his suspect as neutral in this regard: ‘I advised Sub Police Inspector Bandara who brought the suspect to leave my room […] There is an environment that the suspect can freely confess’. Regardless of this supposedly ‘free environment’, the custody arrangements made for Alagayya could have had a significant impact on the voluntariness of his confession because after recording the confession, the suspect was returned to the same custody officers who may have initially interrogated him or who may have influenced him to confess. Here the legal truth or admissibility of the confession could be called into question on the basis that the suspect could not have been free to give a statement because he was returned to the same custody arrangements, rather than producing the suspect to the court, 43 Kalimuttu [1966] 69 NLR 349. It should be noted that the general criminal law prohibits the use of confessions recorded by the police as a substantive piece of evidence but the counterterrorism laws do not prohibit the police recording confessions.

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which would have resulted in him being placed under protective custody in remand. Sri Lankan courts, however, have not taken this argument on custody arrangements seriously, as the courts in Western legal systems have done, including in Northern Ireland. For example, in R v Flynn and Leonard, the Northern Ireland Court of Appeal held that confessions obtained in the special anti-terrorist interrogation centres established by the police to question suspects were not voluntary because the process was expressly designed to pressure otherwise reluctant suspects into confessing. 44 According to section 127 (3) of the Criminal Procedure Code, a magistrate shall record a confession ‘upon questioning the person making it, [if] he has reasons to believe that it was made voluntarily’. In the Sri Lankan context, it is often argued that that this provision in relation to a magistrate recording a confession is applicable to an ASP who records a confession under the counter-terrorism laws,45 insofar as the ASP is undertaking the same duty as a magistrate. Alagayya’s confession does not include mention of any reasonable effort by the ASP to verify its voluntariness before sending the suspect to receive a medical examination. 46 As the ASP failed to verify either the presence or absence of inducement, threat, or promise and failed to include such verification in the initial introductory narratives of the confession, Alagayya’s confession remains incomplete, lacking the key components required to be admissible under the rules of evidence. Although allowing confessions as evidence contradicts the principles that prohibit self-incrimination, 47 a clear caution of the suspect (that the confession can be used as evidence against them) prior to confessing makes a voluntary confession admissible; in this scenario, the police would make sure that a caution is included in the narratives of the confession. However, the cautions narrated in most of the Tigers’ confessions seem to be inadequate either because they have not been communicated to the suspect appropriately or because the suspect did not have the capacity to understand the caution and respond appropriately. In Veerakarthi’s confession the senior police officer says, ‘I have explained the section 16 44 1972 NIJB [May]. 45 Field observations and interviews (March-August 2005). 46 However, once the senior police officer began recording the confession following the medical examination, the suspect has said that he was not persuaded by promise, threat or inducement. In similar situations, defence lawyers have argued that it is then too late to verify such oppression because the recording of the confession has already begun. 47 The rule that prohibits self-incrimination, however, comes from two sources: the Evidence Ordinance 1895 (repealed 1961) and the Code of Criminal Procedure 1979 (repealed by Act No. 52 of 1980). See Chapter 1.

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(1) of the Prevention of Terrorism Act and the section 24 of the Evidence Ordinance again to the suspect and I have explained that the statement that he is giving could be used against him one day at a court of law’. As the actual words that the officer spoke are not presented in the same syntactical formation, these narratives do not indicate whether the suspect was merely informed of the sections of the legislation, whether the ASP read out the sections, or whether an explanation of the legislation was provided to the suspect by paraphrasing the relevant sections. Moreover, it is quite possible that a layperson like Veerakarthi had not understood the complexity of this caution. Therefore, it could be argued that the suspect did not have the capacity to understand the caution, because mental capacity should include the ‘power to understand the transaction’ and the ability to ‘act in a reasonable manner’ in relation to the issue in question. 48 Therefore, Veerakarthi’s understanding of the caution needs to be verified by asking: Did he have the power to understand the lexically dense narratives? Did he have the capacity to walk away from the interview once the consequences of doing so were explained? If the police officers have already prepared an interpreter and typist to record the confession, how possible would it be for a detained suspect to say, ‘I have changed my mind’, and walk away? The case law on confessions requires that the suspect be given adequate time to contemplate whether to give a confession, although there seems to be no single authority on the length of time (cooling time) that should be allowed for this purpose. 49 Alagayya was given only 65 minutes, which seems inadequate particularly since most of this time was apparently spent on the medical examination. Further, because the suspect was taken to the hospital by the custody officer who produced the suspect to the ASP, both the impartiality of the medical report and the freeness of the environment in which the suspect spent these 65 minutes are questionable. In such circumstances, the suspect could not have been ‘free’ to contemplate his decision or to discuss any concerns openly with the medical officer. Similar to Alagayya’s and Veerakarthi’s confessions, all the Tigers’ confessions within the sample examined in this research contain one or multiple indicators of legally inadmissibility, such as oppressive custody arrangements, oppressive police behaviour, failure to establish the voluntariness 48 Bjerre, ‘Mental capacity as metaphor’, p. 131. 49 See Mariyadas v State (1995, 1 SLLR, 106) and Vivekanandan v Selvarathnam (79 NLR 337). Also see the following Indian cases on the law of confessions: (a) Simon v State of Karnataka (2004) 1 SCC, pp. 81-82, (b) Ranjit Singh v State of Punjab, AIR 2002 SC, pp. 3247, 3250, (c) State of Maharashtra v Bharat Chaganlal Raghani, AIR 2002 SC, pp. 409, 423, (d) CBI v Ashiq Hussain Faktoo (2003) 3 SCC, pp. 166, 171.

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of the suspect’s confession, failure to caution the suspect, and failure to provide the suspect with adequate time to contemplate their decision to confess. This means that the majority of the Tigers’ confessions appear to be legally untruthful because the events and the facts represented in the narratives do not comply with the rules of evidence. While this could be one of the main reasons for the courts rejecting the majority of Tigers’ confessions, it should be noted that the existence of written confessions does not necessarily mean that they were recorded as part of interactions between the suspect and police officers. A written confession can be fabricated by police officers using their templates, without any interaction with the suspect. One way of verifying whether a confession has been fabricated is by holding a trial in which all the witnesses can be examined and crossexamined. Another means of verifying the authenticity of a confession is to conduct forensic linguistic analysis, which is based on the criteria of semiotic truth.

Semiotic criteria Although witnesses are frequently examined and cross-examined in courts to confirm the details of the preparation of confessions, the most accurate and complete story may be contained within the written document itself.50 The elements that can reveal the most accurate and complete story include signatures, words, sentences, and the tone of the narratives. From a linguistic point of view, a written account can be deemed to be truthful if the written narrative contains an original story, unique syntactical constructions and coherence between the spatial and temporal elements. Hence, semiotic criteria refer to the syntactical, spatial, and temporal elements of narratives. First, the syntactical components include the concept of ‘semiotic iconicity’ or ‘iconic signification’, which refers to the attributes of ‘originality’ or ‘uniqueness’ of a document.51 Iconicity is represented by: (a) legitimating or identifying devices such as signatures and fingerprints and elements of credentials such as letterheads or government emblems; and (b) the uniqueness of the language, sentence construction and vocabulary, and the tone of the narrative. Second, the ‘spatial’ elements include the representation of the space in which the reported confession took place. The spatial boundaries surrounding an act of confession could be formed within 50 Hilton, Scientific Examination of Questioned Documents, p. 31. 51 Scott, ‘In search of the truly fake’, pp. 311-312.

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the walls of an ASP’s office or, as in Alagayya’s confession, the boundaries could be extended to the hospital to which he was taken to obtain a medical certificate. Third, the ‘temporal’ elements represent the time (duration) that was spent on the actions related to the confession. A confession of a Tiger includes at least two temporal layers: the act of confessing at the present time and the act/s of terrorism carried out in the past. These spatial and temporal elements need to be considered as a combination of indicators52 because it is the coherence between these elements that needs to be established to verify whether the narratives accurately reflect the recorded incident. This verification of coherence between the spatial and temporal elements involves measuring the space against the time and the content against the structure. In terms of measuring space against time, we need to verify whether it was possible for the confessionary statement to be typed in the given time, for example, by considering the time spent on uttering the confession by the suspect, interpreting, paraphrasing, typing, and explaining the content in the suspect’s mother tongue. In terms of measuring content against structure, we must verify whether the content aligns credibly with the structure; for example, this can be determined by identifying whether the suspect would have been able or likely to construct a statement with certain sophisticated structures like clear chronology and complex syntactical formations. This measurement can assist us to establish semiotic truth in relation to a confessionary statement by verifying: (a) whether the narrative was uttered by the suspect (or by someone else), and (b) whether the narrative accurately represents the spatial and temporal elements of the incident described. When the Tamil Tiger suspects are prosecuted based on confessionary evidence, the most common defence put forward by the suspects is that they have not given any voluntary or involuntary confession at all, and that the confession was a complete fabrication, written in order to deceive the court and secure a conviction. However, the defence lawyers do not seek to adduce evidence to prove that the narratives are deceptive, but instead submit evidence to establish that the act of recording the confession did not take place at all. They prove this by finding contradictions between the testimonies of the prosecution’s witnesses or proving that the suspect was subjected to torture by submitting medical evidence of such. This approach only assists the court to reach a verdict on whether the written incriminatory narratives are voluntary or involuntary. Thus, the question of whether the narratives are deceptive or truthful remains unanswered in 52 See Den Bore, ‘Deictic references’, p. 295.

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all of these cases. As a result, while the court refrains from making a ruling on whether a particular witness has lied, it does not determine whether the prosecution’s witnesses ought to be punished for giving false evidence. Forensic linguistic analysis could be useful in this context: to provide a specialist opinion on the semiotic truth of confessionary narratives. It must be noted that the discipline of forensic linguistics is still somewhat new terrain for many lawyers, even in Western countries, and forensic linguistic methodologies are rarely used in justice systems. This is perhaps partly because jurists are still coming to understand and assess the accuracy and reliability of forensic linguistic tools. DePaulo concedes: ‘the study of verbal and non-verbal behavioural cues to deception is an inexact science, and probably always will be’.53 Therefore, it is important that we apply linguistic analytical tools with caution, and avoid misinterpreting linguistic inconsistencies as complete fabrications (or misinterpreting linguistically consistent documents as semantically truthful). According to forensic linguists, the potential sources of ‘incorrect accounts’ of narratives are either that a witness who is motivated to provide a correct account is making unintentional errors or that a witness is intentionally telling a lie.54 This reasoning could be applied to both parties in a court case: the prosecution’s witness and the defence’s witness. For example, a Tiger suspect may intentionally lie in a confession, believing that admission of guilt would spare him from a long prison sentence and help him receive a pardon, although such a belief could be the result of a promise made by the police (which would render the confession inadmissible). Similarly, it is possible that police officers, particularly those who have little training in legal documentation, may prepare incomplete statements which could be misread as fabricated documents. The courts tend to excuse such bona fide errors perhaps due to the fact that the public office bearers are reasonably expected to tell the truth.55 Nonetheless, there could be many reasons for the police to lie: for example, to punish a suspect whom the police believe to be a ‘terrorist’, or to cover a loophole in the suspect’s statement that could be detrimental to the prosecution. By designing a comprehensive linguistic analytical tool with appropriate check-and-balance features, and applying the tool with caution, errors, and ambiguities within the linguistic analytical process may be minimised. According to some of the 53 DePaulo and Morris, ‘Discerning lies from truth’, p. 15. 54 Kohnken, ‘Statement validity analysis’, p. 41. 55 Section 80 of the Evidence Ordinance says that a document certified and produced by an officer with an authority is presumed to be genuine.

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groundbreaking research materials presented in the 2003 symposium on Deception Detection in Forensic Contexts, several comprehensive forensic linguistic tools such as Statement Validity Analysis (SVA) and Criteria Based Content Analysis (CBCA) have been developed and are being applied with some success by linguists.56 One of the key grounds for questioning the truthfulness of Tigers’ confessions is the existence of similar confessions and the non-existence of unique confessions among them. A forensic linguistic investigation into the truthfulness of these confessions hence necessitates comparisons of similar confessions. A comprehensive forensic linguistic analysis of Tigers’ confessions needs to be undertaken beyond the multidisciplinary scope of the present research; however, a brief forensic analysis is presented to elaborate on the concept of semiotic criteria by examining the confession of Nallaratnam Singarasa,57 who was convicted on the basis of confessionary evidence. This exercise involves analysing the content, structure and style of the narratives for the purpose of examining the links between the source (the suspect or co-authors) and the outcome (confession). The methodology includes close reading, word counting, time calculation and, most importantly, comparing the narratives with the characteristics of the confessor. Nallaratnam’s confession was typed on the letterhead of the Criminal Investigation Department and each page of the statement includes a sequential page number, so that the iconicity of the document is evidenced to a certain degree. It includes approximately 1645 Sinhalese words. The confession was certified by the signatures of the three police officers involved in recording the confession and the thumb impression of Nallaratnam, who was illiterate at the time that his confession was recorded. The narrative of the confession appears to flow logically, from a clear beginning in the pre-confessionary introduction, to free confessionary narratives in the middle of the confession, and post-confessionary certification at the end. The structure of each of these parts seems heavily weighted towards adducing incriminating facts and the incriminating story of the suspect (in the free confessionary narratives) was intricately summarised, chronologically ordering the events leading to the crimes he allegedly committed. Although it is understandable that the narratives dictated by the Police Superintendent would be heavily structured, the logical flow and clever structuring of the suspect’s free or 56 Granhag and Strömwall, ‘Research on deception detection’, p. 4. 57 Segments of Nallaratnam’s confession presented in this chapter are taken from a verbatim translation of the confession originally recorded in Sinhalese. See the Appendix.

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spontaneous narratives raise doubt about the authenticity of the confession, given the suspect’s educational background. Forensic linguists are of the opinion that the ‘logical sequencing’ of information tends to support a verdict of guilty because the arrangement of the information is controlled by the interrogator and the sequence is established by questions and answers rather than by free-style, voluntary narratives. In other words, the questions put by the interrogator could be used to ‘reconstruct the narratives of the confession’,58 which may be (falsely) represented as free and voluntary narratives. Hence, the logical sequence and structure of Nallaratnam’s narrative could suggest that he was exposed to force or inducement, or even that his confession was fabricated. Nallaratnam’s confession begins as follows: 11.12.1993 day, 16.20 hours at Criminal Investigation Department Unit of Batticaloa prison. On my advice, Nallaratnam Singarasa, who is being detained under a detention order IS/86/2/N/D/1146 has been produced before me. He says that he wants to give a confession voluntarily. At this moment, I have advised the suspect to think further about this [giving a confession]. [I am] giving time and space for this. Now the time is 16.35. The suspect informed me that he is prepared to give a confession to me voluntarily. I have informed him that I am recording his confession under the section 16 of Prevention of Terrorism Temporary Provisions Act and the section 50 of [the] Emergency Regulations and I am recording the statement under the powers given to me by the above sections. I have explained to the suspect that the statement given by him could be used as evidence in a court case under the above-mentioned sections. Further, I have explained the charges against him such as receiving military training after becoming an LTTE member, attacking Jaffna Fort, Elephant Pass army camp, Palali army camp, Kankasanthurei security post and attacking an army patrol in Arantalawa. Further, I have informed [him] not to give his confession due to any threat, inducement or promise. The suspect informed me that he cannot understand the Sinhalese language and he has no objections for recording his statement in the Sinhalese language. It appears that the suspect is in good health condition to make a statement. The Tamil statement of the suspect is interpreted to Sinhalese and the statement recorded in Sinhalese is interpreted to Tamil by Constable 15596 Hasim. According to my advice the statement is typed by Hasim in [the] Sinhalese language. I have unfolded my service identity card 58 Coulthard, ‘Whose voice is it?’, p. 32.

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and explained to him [to Nallaratnam] that I am Police Superintendent H.M.D. Herath from the Colombo Criminal Investigation Department. Now I am starting to record the suspect’s statement.

The Police Superintendent met the suspect at 16:20 hours and informed him that the confession would be recorded. The Superintendent then gave the suspect time to further consider his decision to confess. At 16:35 hours the Superintendent started recording the confession. This cooling time would have been inadequate for all these events to take place and the suspect would have had virtually no time in this scenario to contemplate his decision. According to the scenario outlined in the confession, 72 words were typed during this 15-minute gap between 16:20 and 16:35 hours. If this 15-minute period supposedly included the time needed for the suspect to speak, the interpreter to interpret, the Superintendent to paraphrase and dictate, and then for the typist to type, there would hardly have been adequate time for the suspect to contemplate his decision to confess. The only way that this might have been possible within 15 minutes is if the Superintendent were sitting with the interpreter/typist in the office, ready to type the statement, when the suspect was produced by the Military Police; however, this setting would suggest that the confession was premeditated or already agreed and arranged. Yet no such pre-arrangement was outlined in the introduction of the confession. There is a significant discrepancy in relation to the involvement of the interpreter/typist. The Police Superintendent mentions the interpreter for the first time only after approximately 260 words have already been typed: ‘The Tamil statement of the suspect is interpreted to Sinhalese and the statement recorded in Sinhalese is interpreted to Tamil by Constable 15596 Hasim.’ Since it was imperative for the Superintendent to have an interpreter present from the very beginning of his conversation with the suspect, not mentioning the involvement of the interpreter suggests that the scenario did not play out as reported. Because the period of time for which the interpreter was involved in the conversation between the suspect and the Police Superintendent is unclear, questions arise around how the most crucial information, such as the caution, were conveyed to the suspect, who could neither speak nor understand Sinhalese. Nallaratnam’s free confessionary narrative begins as follows: Says as follows: I am the person who has been described above. The officer who is recording my confession unfolded his service identity card and informed me that he is Police Superintendent H.M.D. Herath

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from the Colombo Criminal Investigation Department. I recognised this gentleman. Also I was explained that the statement I am giving is recorded by this gentleman under the powers he has been given by the Prevention of Terrorism Act and the Emergency Regulations. I was explained that my statement given according to the above sections could be submitted against me as evidence in a court hearing. I was informed that I should not be giving my statement due to any promise, threat or inducement. Because I can’t understand [the] Sinhalese language, I have no objections in recording my statement in the Sinhalese language because my statement is explained in Sinhalese. I was explained the charges against me, which are receiving military training after becoming an LTTE member, attacking Jaffna, Elephant Pass army camp, Palali army camp, Kankasanthurei security post and attacking an army patrol in Arantalawa. [I am] in good physical and mental conditions in order to give a statement.

Certain peculiarities of Nallaratnam’s confession raise significant doubts about its authenticity. The suspect stated, ‘I am the person who has been described above’. This is a very unusual and unlikely remark to be uttered by someone like Nallaratnam. Therefore, the most viable explanation for the inclusion of this remark is that the narrative was authored by someone who is familiar with the standard writing style required for police statements. A layperson would say, ‘My name is Nallaratnam’ rather than ‘I am the person described above’. Several other formal phrases appear in the confession, which are sometimes repeated, suggesting that they were not the real words of the suspect but rather constructed by the police officers. The suspect apparently said, ‘I have included a description about my siblings of my family to the statement taken on the earlier date’. The use of formal phrases such as ‘included a description’ and ‘statement taken’ is not at all congruent with the language common to free-style narratives, and would not plausibly be uttered by a layperson like the suspect. Moreover, the utterances about a previous statement not only abruptly deviate from the natural flow of the narrative, but also provide no logical reason for the suspect mentioning the ‘inclusion’ of family details in this previous statement. The suspect reportedly said, ‘I was informed that the statement I am giving is recorded by this gentleman under the powers he has been given by the Prevention of Terrorism Act and the Emergency Regulations. I was explained that my statement given according to the above sections could be submitted against me as evidence in a court hearing. I was informed that [I] should not be giving my statement due to any threat, inducement

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or promise’. It is simply not credible that Nallaratnam uttered these long, eloquent sentences, constructed in the passive voice, particularly as he is unable to read and write. Furthermore, it is implausible that the suspect could utter a highly sophisticated sentence such as, ‘I was explained the charges against me, which are receiving military training after becoming an LTTE member, attacking Jaffna Fort, Elephant Pass army camp, Palali army camp, Kankasanthurei security post, and attacking an army patrol in Arantalawa’. Moreover, this long list of charges against the suspect was repeated three times in almost identical order: first, the Police Superintendent said, ‘I explained the charges…’; next the suspect says, ‘I was explained the charges…’; and finally the suspect says, ‘I admit the charges…’. Further, the phrase ‘threat, inducement or promise’ is first uttered by the Police Superintendent and later repeated in the same order by the suspect. It is simply not credible that the suspect would have repeated this exact order of the words of the police officer as part of a free and voluntary confession. These repetitive phrases could be a result of fabricating and copying the narrative.59 Nallaratnam continues his free confessionary narrative: Around 1989 when the Indian Army was leaving Sri Lanka, I was living in the above-mentioned address, doing labour jobs in the village. During this time an LTTE member called ‘Amchar’ contacted me and asked [me] to take some goods required at the LTTE camp in Kaanda area, so I agreed and when I was taking the goods [they] asked me to join the LTTE. When I went there I was handed over to a person called Ramanan at Kaanda LTTE camp. During this period, I stayed in the camp for several days and then I was taken with another thirty young men to the camp of a person called Ruben in Berut area. Then [we were] taken to a camp of a person called Ravi in Muttur area. [They] employed myself and the others in building bunkers, cleaning the surrounding area and other small tasks.

At a glance, the information presented in this excerpt about the life of the suspect appears believable. Distinct information about the names of some of the local Tiger leaders, the names of the army camps, and the timelines described in the confession appears to be accurate, or at least to not contradict the existing evidence. For example, the admissions in the confession are consistent with the facts around the attack against the army 59 Forensic linguists argue that liars are more likely to repeat words and phrases. See DePaulo and Morris, ‘Discerning lies from truth’, pp. 22-25.

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camp in Jaffna Fort launched by the Tigers in 1990. Further, some of the leaders’ names provided by the suspect are mentioned in news archives and military reports; for example, Balraj was a provincial LTTE leader who died in 2008. However, one could argue that real names and timelines could be easily incorporated into a fabricated confession. Offence-specific information in confessions usually includes a detailed description of the offence, and references to both the physical (actus reus) and mental elements (mens rea).60 This is the most convincing component of Nallaratnam’s confession. The suspect demonstrated his knowledge of weapons and military strategies. He described the weapons he had been trained to handle and mentioned the names of some army bases and police stations that he attacked: Later about 200 were given training in this camp; first physical exercises, [then] AK-47, SLR, LMG, SMG [weapons] and hand grenades and I received the training voluntarily. This training period was about three months and I was given the name ‘Karan’ by the LTTE organisation […] Later we all went to Jaffna town […] Later for several days [we] launched an attack at the army camp in Jaffna Fort. I also took part in this attack. While we had been attacking like this for several days, the army officers abandoned Jaffna Fort and left. Later during the second or third month of 1991, [I] went with a group of 400 to attack Palali army camp […] After we went there I was given the duty of cut-out61 [and we] rounded up Palali army camp and launched the attack. Several more did the duty of cut-out with me while about 15 died and I don’t know how many army officers died.

It should be noted that Nallaratnam’s apparent knowledge of certain crimes cannot be taken as the truth due to a number of reasons. The offences described in this confession are associated with well-reported assaults launched by the Tamil Tigers, and therefore have become common knowledge among Sri Lankans, including, no doubt, the police officers involved in the recording of this confession. These officers could have incorporated their knowledge of these crimes into a fabricated confession, and imposed this knowledge onto the suspect. Further, some information included in the confession related to the assaults launched by the Tamil Tigers may be incorrect. For example, the suspect says that he took part in a large-scale 60 Husak, ‘Orthodox model of the criminal offense’, p. 20; Peiris, Offences under the Penal Code of Sri Lanka, pp. 57-64. 61 ‘Cut out’ is a term used to explain guarding a convoy.

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attack on Palali army base in February or March 1991; however, this has not been reported either in the Tamil Tigers’ media or by the Sri Lankan Defence Department’s sources. According to forensic linguists, the ‘presence of guilty knowledge’ needs to be established by the ‘originality’ of the details and the ‘degree’ of detail provided about the crime.62 In Nallaratnam’s confession, the knowledge about the offences is only established by ‘repeating’ existing or known information, and therefore the suspect did not demonstrate that he alone was in possession of this knowledge. According to forensic linguists, one of the important ways to identify a false confession is through a careful analysis of the post-admission statement.63 The post-confessionary certification in the case of Nallaratnam includes the following segment: I admit the charges of receiving the training of LTTE organisation, as a result of that training attacking places such as Jaffna Fort army camp, Palali army camp, Elephant Pass army camp and Kankasanthurei and killing army officers and attacking an army patrol who were checking the road in Arantalawa and shooting and killing army officers. That is all what I have to say. The officer who is recording my statement has explained to me that now the time is 18.00 hours. My statement was read in Sinhalese and explained to me in Tamil. Now the time is 18.15. I have placed my left thumb impression certifying all the pages of my above statement and I was well explained about the places where mistakes were corrected. [I] admit the statement was correctly recorded. Admitted and placed the left thumb impression certifying [the statement]. I, Police Superintendent H.M.D. Herath, do hereby certify that I have correctly and honestly recorded the statement of above-named Nallaratnam Singarasa. Now the time is 18.20 hours. Now I am duly handing over the suspect Nallaratnam Singarasa to Lance Corporal Vijekoon of the Military Police to be detained where he [Nallaratnam] had been detained earlier. [illegibly Signed dated 93-12-11] I, Police Constable 15596 Hasim, do hereby certify that I have duly typed the statement of above-named Nallaratnam Singarasa and translated from Sinhalese to Tamil according to the advice of Police Superintendent H.M.D. Herath [illegibly Signed dated 11/12/93]. 62 Hill, ‘Identifying the source of critical details in confessions’, pp. 24-26. 63 ‘A careful analysis of the post-admission statement […] reveals striking errors and omissions, rendering the confession unconvincing and inherently improbable’. See Gudjonsson, The Psychology of Interrogations and Confessions, pp. 180-181.

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All three participants involved in co-authoring the confession signed the confession; hence, their involvement has been established, providing a certain degree of authenticity to the document. However, the signatures of the three participants do not prove that all three were present at the same time. The document could have been typed to allow for space for the signatures to be included on three separate occasions. At the end of the confession the suspect says, ‘My statement was read in Sinhalese and explained to me in Tamil’ between 18:00 and 18:15 hours. By that time, approximately 1517 words had reportedly been typed, so it seems implausible that the interpreter could have explained 1517 words in 15 minutes. We can therefore only assume that ‘statement’ here refers only to the free confessionary narrative (1174 words). This means that the interpreter had to explain at least 78 words per minute (1174 ÷ 15 = 78). There are two significant irregularities in this version of events: (a) the failure of the officers to read the introductory part of the confession to the suspect could have been detrimental to him because this part is connected to the remainder of the document, and (b) the period of time that would be required to clearly read the confession in Sinhalese and then to explain the content in Tamil would necessitate a rate of more than 78 words per minute.64 If the confession were explained in Tamil, the number of words uttered by the interpreter would have needed to be doubled, equating to approximately 2348 words. With a speed of 110 words per minute, a minimum of 20 minutes would be required to read even the free confessionary narrative (the middle part of the statement, which includes the suspect’s own words) and translate it into Tamil. These generous calculations are provided under the assumption that the interpreter was extremely knowledgeable in both Sinhalese and Tamil, and that he was uttering the words at the maximum speed possible while still ensuring a certain level of clarity. These calculations suggest that the content of the confession was not in fact read in Sinhalese and explained in Tamil; hence, there is strong evidence to indicate that this is a deceptive statement. According to the confession, between 18.15 and 18.20 hours a number of tasks were completed: (a) explaining certain mistakes and typographical errors within the text to the suspect; (b) correcting the errors in the narrative that had been typed up until 18:15 (approximately 60 typographical errors were corrected using a pen); (c) typing 69 additional words (‘I have 64 The reading time was tested by a fluent Sinhalese speaker. When the speaker read this confession in Sinhalese at a reasonable speed, while maintaining the clarity of the speech, the speaker was able to read approximately 100-110 words per minute

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placed my left thumb signature […] I correctly and honestly recorded the statement of above-named Nallaratnam Singarasa’, requiring at least three minutes if the typist typed faster than 20 words per minute); (d) removing the paper from the typewriter to place the thumb print of the suspect on the document; and (e) reinserting the paper into the typewriter to continue the typing. It is implausible that all of these tasks could have been completed within five minutes. At the end of the free confessionary narrative, Nallaratnam concludes: ‘The officer who is recording my statement explained to me that now the time is 18.00 hours.’ Yet is it highly unlikely that the suspect would have thus repeated the police officer’s statement about the time. According to forensic linguists, truthful written statements usually do not include the quoted verbatim speech of others65; hence, this remark appears as further evidence of a poor attempt at fabrication, whereby the author may have wanted to include the time as a matter of formality and decided to insert the remark into the suspect’s narrative. Further, it is highly improbable that the average person would speak in terms of 24-hour time (e.g. ‘18:00 hours’ instead of ‘6 pm’). According to the findings of the above analysis, the acts described in Nallaratnam’s confession can be categorised into three types: (a) acts that have actually taken place, (b) acts that may have taken place but cannot conclusively be proven, and (c) acts that have not taken place at all. Based on this forensic linguistic analysis, the only act related to the actual recording of the confession for which there is convincing evidence that it took place is the suspect and the two police officers signing the confession, whether at the same or at different times. All of the other acts described in the confession likely did not happen at all, such as the suspect being given time to think further before giving his confession; and the suspect saying, ‘The officer who is recording my statement explained to me that now the time is 18:00 hours.’ There are at least two acts described in the confession that are empirical impossibilities: (a) reading the complete confession in Sinhalese and then translating it into Tamil between 18:00 and 18:15 hours, and (b) correcting all the typographical errors between 18:15 and 18:20 hours. According to this analysis, it appears that the confession was authored by the police officer/s, incorporating certain information such as Nallaratnam’s address, and certain details about his village and family, into what is essentially a list of crimes committed by the Tamil Tigers. The narrative of 65 Adams and Javis, ‘Indicators of veracity and deception’, pp. 9-10.

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Nallaratnam’s confession contains: (a) illogical syntactical structures and a style that could not have been constructed by the suspect; (b) spatial and time disparities – that is, certain events that supposedly occurred but could not have occurred in the time stated in the confession; (c) the repetition of very similar or identical phrases, which it seems implausible would be repeated by an average person giving a confession; (d) unusual and sometimes improbable remarks that it is very unlikely would have been uttered by the suspect or the police officers; and (e) empirical impossibilities. Based on this analysis, striking similarities were discovered (indeed, at times the text was identical) between the confessions of Nallaratnam Singarasa and Sellapulle Mahendran, strongly suggesting that a single prototype was used to fabricate both confessions.66 Several segments of both texts, including the following, were identical: I am the person who has been described above. The officer who is recording my confession unfolded his service identity card and informed me that he is Police Superintendent H.M.D. Herath from the Colombo Criminal Investigation Department […] I have no objections in recording my statement in the Sinhalese language because my statement is explained in Sinhalese. I was explained the charges against me, which are […]

This accidental discovery of identical narratives in the two confessions strongly suggest fabrication of evidence by the officers (both confessions were recorded by the same ASP and the interpreter) and that the two suspects were therefore convicted wrongfully. It is possible that similar fabricated confessions exist as a result of the Sri Lankan Government’s mass prosecution strategy, and therefore that more people have been punished unjustly. However, it should be noted that, as these two confessions were identified from a small sample, these findings cannot be used to draw any general conclusions about the confessionary evidence of the mass prosecution strategy.

Fictions vs. reality On the basis of the materials discussed in this chapter, it was submitted that confession templates have been used systematically as part of the Sri Lankan Government’s mass prosecution strategy, and that the voices of 66 Compare the two confessions in the Appendix.

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individual suspects have been suppressed by the institutional voice of the police. This assertion was advanced by the application of the triple criteria to analyse the sample confessions. In addition, materials of evidence were provided to show that the confessions within the sample of this project lack legal truth (as they are inadmissible according to the rules of evidence), and indeed that some were completely fabricated. Accordingly, the question which was posed at the beginning of this chapter (‘Can the authenticity of Tigers’ confessions be determined by linguistic and narrative analysis methods?’) can be answered affirmatively, subject to certain reservations, because the truthfulness of some confessions cannot be verified by such methods. These findings further cement the doubts cast on the validity of the confession in Chapter 2 (by contrasting the confessions with the Tamil Tigers’ official narratives), while the findings provide strong examples of the systematic efforts of the police to construct false narratives. In light of these findings, how can we reposition the confessions within the broader context of this research? The confessions of Tamil Tigers are presented as solid materials of evidence, constructed for the sole purpose of incriminating suspects. The credibility of these pieces of evidence can be established by questioning the bluntly presented voluntariness, the suspects’ stark indifference to the cautions, and the thematic display of the suspects’ acquiescence. The confessions of Tigers contain no denials, only admissions (although research indicates that in general suspects’ statements frequently contain complete or partial denials of any knowledge concerning a crime67). It is absurd to believe that the Tamil Tigers would thus comply with the mass prosecution strategy, ignoring cautions about consequences and abandoning the institutionalised discipline of committing suicide before being arrested. The materials of evidence discussed so far direct us to the contention that most of these confessions were recorded without the consent or voluntariness of the suspects. Involuntary confessions come into existence due to a number of factors, including the use of extreme force (such as torture) or psychological pressure (such as plea bargaining). In order to verify the proposition that the Tigers’ confessions were involuntary, we must analyse the version of events put forward by the suspects who have been prosecuted using confessionary evidence. Thus, the next chapter will be dedicated to exploring the unofficial stories of past and present prisoners, while verifying their versions of events by probing the efficacy of the investigation strategies adopted by the police. 67 Kaufman, The Admissibility of Confessions, p. 5.

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Before moving to Chapter 4, it is important to foreshadow a dialogue that will be raised at the conclusion of this research, which blends the multifarious themes emerging from this enquiry, such as truth, fantasy, and fiction. As discussed in relation to the cases of Nallaratnam and Sellapulle, involuntary confessions can be the result of complete fabrications, which fictionalise the interactions between the suspect and the police. Further, as previously mentioned, the information vacuum engendered by the stark polarisation of warring communities in this conflict has prevented the police from accessing intelligence about its enemy. These propositions link to the earlier suggestion in the previous chapter that the warring rivals seek to ‘fantasise’ a victory over their enemy and ‘fictionalise’ such victory by narrating myths and legends of heroism. While it is not within the scope of this research to present an elaborate discussion of the epistemology of fictional narratives, it is important to note that the Tigers’ confessions display certain fictional elements, including elaborate stories, characters, and a degree of over-dramatisation.68 One can therefore argue that in this context the confession is used as a form of chronicle which carries the fully or partially fictionalised victory of the state over its enemy-terrorist, or at least conveys the narratives constructed through the state’s desperate attempts to know its secretive enemy, by putting the pieces of the puzzle together based on a fantasy. In light of this discussion around the f ictional elements of Tigers’ confessions, it is important to pose the question: Are these confessions that have been found to be untruthful simply fictions, narrated by police officers to meet some personal or institutional ends? Two pieces of evidence compiled by investigative journalists in Sri Lanka have suggested that police have fictionalised confessions in order to meet certain political ends. In June 2007, the Criminal Investigation Division in Colombo reported that it had uncovered an elaborate plan of the Tamil Tigers to attack Colombo Harbour on the basis of a confession it had gathered.69 68 The confessions of Tigers include many elements common to fiction, such as plots, characters and dramatisation. Seymour Chatman’s ‘story’ and ‘discourse’ based analysis could be applied to the Tigers’ confessions. See Chatman, Story and Discourse, p. 17. Moreover, there are certain elements that f ictional narratives share with non-f ictional narratives; therefore, f ictitious elements could be mixed with facts and hidden within a legal document like a confession. For a discussion on what makes a text fictional, see Currie, The Nature of Fiction. Also see Stephens and Waterhouse, Literature, Language and Change. Further, Lieblich et al. argue that humans are natural storytellers; this theory could be applied to the confessions of Tigers to argue that police officers would not need to be expert creative writers to fictionalise a confession. See Lieblich et al., Narrative Research, pp. 7-8. 69 Nanayakkara, ‘The biggest joke’.

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Nanayakkara, a journalist, revealed the flaws within the confession by analysing the ‘plans’ of the Tigers presented within it. He pointed out the impracticalities of the plan, arguing that a sophisticated movement like the Tamil Tigers could not have devised such a crude scheme, and ridiculed the confession as a ‘fiction’ created by ‘politicised police offi­ cers’. The journalist also argued that the government’s accusations were aimed at justifying its actions in forcefully removing the temporary Tamil residents of Colombo. Writing a biography of former president Chandrika Kumaranatunga, Victor Ivan reveals that the president’s ‘mafia’ staged a bomb attack against her to win public sympathy during her election campaign.70 The former president miraculously survived the attack and the police closed the case by arresting and securing a confession from the alleged accomplice of the bomber. Ivan writes: ‘it became apparent that this person [the accomplice] had been asked to make a false confession on the assurance that he would not be prosecuted for another crime for which he had been arrested’.71

70 Ivan, The Queen of Deceit, pp. 14, 53. 71 Ibid., pp. 53-54.

4

Punitive interrogation of Tamil Tiger suspects

By demonstrating in the previous chapter that the written texts within the majority of Tamil Tigers’ confessions are incompatible with the polysemic criteria (legal, semantic, and semiotic) that determine truth, it was argued that these confessions were not given voluntarily – the most important element for a confession to be legally admissible. It was also suggested that these confessions likely resulted from the police exerting physical or psychological pressure on the suspects. This chapter aims to verify these claims, and thereby to assess the validity of the confessions of Tamil Tigers by questioning the efficacy 1 of the policing strategies adopted in arresting, investigating, and prosecuting terrorist suspects. This exercise involves an analysis of the responses of the terrorist suspects who have been subjected to such policing strategies. The chapter will therefore present the voice of the suspect, or the defence, as opposed to the voice of the police, posing the questions: How have the state’s agents enforced the counter-terrorism measures among the suspect population, and how do such measures impact on individual suspects? Exploring the answers to these questions requires an analysis of the materials that reveal both Sri Lankan and international experiences of policing, particularly in the counter-terrorism context, while drawing attention to the defence of the Tiger suspects. Hence, the methodology will include: (a) referring to the literature on policing, the state of emergency and penalty; (b) presenting and analysing documentary evidence such as confessions, medical reports, witness statements and news articles; and (c) presenting materials gathered during the field interviews and field observations. This discussion will be linked to the analysis in the first chapter of the background of the war against terrorism in the context of the ‘state of exception’, ethnic rivalry and penal theory. Considering these broader contexts, this chapter explores how the police have defined the suspect population in Sri Lanka, the types of interrogation strategies they have applied in their investigations, how far the suspects were able to exercise their liberty in police custody, and how the political and ethnic factors have influenced such investigations. 1 The term ‘efficacy’ explains the broader results anticipated from the policing strategies: that is, whether the qualitative and quantitative outcomes comply with certain legal, ethical and human rights standards.

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At the outset of this study it was established that unless Tamil Tiger suspects agree to a plea-bargaining arrangement, they deny that they have given a confessionary statement.2 Because both innocent and guilty suspects can retract their confessions at the trial stage3 (stating that they have not given a confession at all), a detailed investigation is needed to verify the truthfulness of the defence brought by the Tamil Tiger suspects. One way of verifying the truthfulness of the defence is by scrutinising the testimony of the defence at a trial. Another way is to obtain a personal account from the defence outside the judicial system, without being restricted by the rules of evidence or other grounds such as fear of persecution or reluctance to reveal personal information in public. Adopting a combination of these two approaches (considering the narratives officially presented by the defence in court and those unofficially revealed by the suspect outside court) will assist us to discover the facts not revealed so far, and thereby the truthfulness of the confessions. Therefore, this chapter places strong emphasis on the narratives recorded in the field when interviewing convicted or acquitted Tiger suspects. This chapter will include the story of Ramani, a female Tiger suspect who purportedly confessed to the police. Ramani came from a village in the eastern province where Sinhalese and Tamils live side by side but are greatly suspicious of each other. Ramani was educated up to grade 10 and spoke both the Tamil and Sinhalese languages fluently. She was arrested in November 2001 and supposedly gave a confession to an ASP one day after her arrest. Before she was indicted in the High Court, her lawyers filed a fundamental rights application in the Supreme Court. The following passage is extracted from an article that appeared in one of the Sinhalese newspapers, in which she submitted her defence: A Tamil woman demands damages for her police interrogation about the Tamil Tigers and having been assaulted at a police station. The Supreme Court grants leave to hear the petition. […] The petitioner says that she had been arrested by a group of police officers who gave her no reason for the arrest. She was later handed over to the local police station. The petitioner says that she has been questioned 2 According to the field research, plea bargaining is not uncommon in the High Court. The lawyers can speak to the prosecutor and the judge in their chambers before the trial begins and discuss the terms of the plea. As the punishments for counter-terrorism offences are severe, the defendants generally do not plead guilty without discussing the terms with the prosecutor first. 3 Both innocent and guilty suspects dispute the confessions at the trial stage, but this does not necessarily mean that their confessions are false. See Gudjonsson, The Psychology of Interrogations and Confessions, p. 181.

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on the charges that she had been spying on a senior cabinet minister and she had been providing information to the Tigers. The petitioner further says that she had been assaulted during the questioning. 4

The police responded in the Supreme Court, submitting a copy of Ramani’s confession, and claiming that she was a Tamil Tiger terrorist engaged in a suicide-bombing mission as an accomplice. The confession included a detailed admission of her involvement with the Tamil Tigers: For about 06 months, I was given a training in using weapons and bombs. Amongst those who were being trained I knew only one called Kamala who came with me from my village. This training camp was called Kanga Base. After the end of the training, one day we were taken to Vandaramullei one night around 08.00 and we launched an attack on the camp. Two soldiers were killed in this attack and we seized 4 guns. We showed those dead bodies to the leader of Kanga Base camp and then buried [them]. During this month we launched an attack on Eravur army camp. Two army soldiers and two of our members died in that attack. After seeing the dead bodies of our members, I fell sick for a long time. Later I was sent back to my village to gather information. About a month ago Ruban and Thevan came to me and instructed that I should look for places where the local MP was going to hold meetings in order to plan his assassination […] The MP was supposed to come to a ceremony at our village on 2000.7.23 at 3 pm. A suicide bomber called Ranjini was supposed to arrive at that ceremony but because she did not turn up, Ruban’s group decided to throw bombs at the ceremony. Because the MP did not arrive on time and the plan was not activated we returned to our Batticaloa camp.5

Ramani’s confession included fewer errors which dispute its evidentiary value compared to the confessions presented in the previous chapter. She could speak, read, and write Sinhalese, unlike many other Tamil prisoners; therefore, the confession being recorded in the Sinhalese language would have caused less miscommunication and confusion. According to the confession, Ramani was in a reasonably protective environment while the 4 This is an extract from an article that appeared in a Sinhalese language newspaper; the details including the name of the interviewee, the location of the interview and the name of the newspaper are not provided in order to protect the identity of the suspect. 5 This is a verbatim translation of a segment from the confession originally recorded in the Sinhalese language. The names of towns, camps or leaders cited within the confession are changed in order to protect the identity of the narrator.

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confession was recorded: for example, she was reportedly in the company of a female officer. The ASP says: ‘I have instructed the Woman Police Constable to take the suspect away and check privately whether there are any injuries on her body. She says that there are no external injuries’. Ramani’s lawyers initially counter-claimed that the confession was obtained as a result of the police assaulting her; however, at that stage there was no evidence to prove such allegations. The lawyers then had no option but to face the charges in the High Court. They discarded their demand for damages at the Supreme Court when the Attorney-General (the public prosecutor) announced that Ramani was to be prosecuted in the High Court based on her confessionary evidence.6 It took nearly two years (from the time of her arrest) for prosecutors to serve the indictment. However, later the charges were withdrawn, as the defence lawyers were able to prove that she was physically assaulted while in custody, based on medical evidence. As noted earlier in this research, a common trend can be seen in the legal war against the Tamil Tigers: that the vast majority of Tiger suspects were released because their confessions were rejected as inadmissible evidence. This casts serious doubt on the efficacy of the method of police investigation used, including the intelligence management systems, interrogation techniques and court case management processes adopted by the police. This also raises the question of whether the police are adequately equipped and trained to combat a well-organised terrorist movement like the LTTE. A number of broader factors also need to be considered in any inquiry into policing in Sri Lanka: for example, the country’s colonial past, corruption, political interference and ethnic allegiances have been noted as factors that have had a strong influence on the police and policing practices.7 Furthermore, the role of the police changed significantly throughout the course of the war, placing them in extreme danger as they were targeted by the Tigers. As demonstrated in Chapter 1, the counter-terrorism measures adopted by the Sri Lankan Government have been inferior to the modern systems 6 The lawyers of the suspects file fundamental rights applications in the Supreme Court in order to accelerate the indictment in the High Court because the Supreme Court orders the prosecutors to indict the suspects without delay. Without such intervention, the indictment could be delayed up to several years. It is important to note that the Supreme Court does not probe the evidentiary value of the confession in a fundamental rights application; therefore, mere production of the confessionary statement by the police respondents forces most applicants to withdraw their fundamental rights application. A detailed discussion on the jurisdictions of various courts is provided in the next chapter. 7 See Hanlon and Dabhoiwala, The Other Lanka; Fernando and Puvimanasinghe, X-ray of the Sri Lankan Policing System; Sumanatilake, Torture; and Mehta, Feudal Forces, Democratic Nations.

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developed by Western democracies, and Sri Lankan institutions are poorly resourced and therefore lacked expertise. The state’s resources were stretched while fighting conventional battles with the Tigers, and little was invested in implementing long-term preventative methods, including sophisticated methods of intelligence management. Further, as noted in Chapter 2, police strategies fared poorly compared to the Tigers’ sophisticated military strategies, intelligence management systems and political strategies which harnessed the popular support of the Tamils. Noting some of these constraints, the report of the Commonwealth Human Rights Initiative submits: Undeniably, police in the region are entirely dwarfed and most often controlled by executives that make little effort to check the huge constraints that the police work within, including lack of financial and human resources, immense working hours and extremely hostile conditions in conflict areas.8

As discussed in Chapter 1, Sri Lanka still largely maintains its colonial institutions, including the criminal justice system and policing systems, which coexist with certain feudal and nepotistic practices, bolstered by political interference.9 Fernando reveals: In some instances the police may be aware of the identity of the real culprits, who were allowed to ‘escape’ after undue influence. In these cases it is even more essential for the police to find substitutes [innocent people who will be labelled as the culprits]. Producing substitutes creates the impression among the department as well as the public that the police are efficient and crimes are being solved. This paves the way to financial rewards and promotions.10

These practices have been noted as common across South Asia, and the Commonwealth Human Rights Initiative refers to the region’s police institutions as ‘feudal forces in democratic nations’: The foundation of policing in the region was imperialism. Alarmingly, neither the advent of independence nor democracy has changed policing 8 Mehta, Feudal Forces, Democratic Nations, p. 6. 9 See Hanlon and Dabhoiwala, The Other Lanka; Fernando and Puvimanasinghe, X-ray of the Sri Lankan Policing System; Sumanatilake, Torture; Mehta, Feudal Forces, Democratic Nations. 10 Fernando and Puvimanasinghe, X-ray of the Sri Lankan Policing System, p. 7.

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models. Post-independence governments have retained archaic policing laws that perpetuate the ills of colonial policing towards their own ends and to maintain their own power. Illegitimate political interference in policing is endemic across the region and has shaped the subservient, partisan, and unaccountable nature of policing.11

Thus, the origins of these semi-feudal features of the policing organisations in the region are to be found in a combination of feudal and colonial practices and values. As argued by Guha, the authority of the colonial state was based on an ‘autocracy’ that did not recognise the rule of law: ‘power simply stood for a series of inequalities between the rulers and ruled as well as between classes, strata and individuals’.12 These autocratic power structures and inequities have been gradually disappearing from the social and political institutions of the region, but evidently the region’s police institutions have continued to embrace certain feudal values and practices. While this complex picture of policing in the South Asian region reveals grossly malfunctioning institutions, the conditions of the ethnic civil war in Sri Lanka added greater complexity to the role of police officers. In the context of Sri Lanka’s war against terrorism, at least two prominent factors have heavily influenced this role. First, the field observations revealed that police personnel have been deployed side by side with military units in Sri Lanka, and that this appeared to be more prevalent in the northern and eastern regions. The police stations became small army camps with barricades, barbed-wire fences, and search towers, as they were forced to defend themselves in direct confrontations with the Tamil Tigers. The second factor that influenced the Sri Lankan police force was the ethnic composition of its members: Tamils were vastly underrepresented in the institution.13 This prevented the Sinhalese-speaking police officers from communicating with their Tamil constituency and understanding their needs, and hindered intelligence gathering. On the other hand, this ethnic imbalance has also been seen as a cause of discrimination and prejudice among individual officers against the Tamils.14 This combination of influencing factors – the colonial, feudal, and ethnic elements – adds more dimensions to the discourse on policing in Sri Lanka, and the forthcoming 11 Mehta, Feudal Forces, Democratic Nations, p. 6. 12 Guha, Dominance without Hegemony, p. 20. 13 Bush, ‘Ethnic conflict in Sri Lanka’, p. 42. 14 See Somasundaram, Scarred Minds; and Manoharan, Counterterrorism Legislation in Sri Lanka.

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enquiry into policing strategies needs to be understood in the context of this multitude of factors.

The suspect population A criminal case is built against a suspect with the aim of proving the two key elements of the crime: the criminal act (actus reus) and the criminal intention (mens rea).15 Compared to other types of evidence, a confession is seen to provide strong proof of the mens rea of a suspect; hence, it is the form of evidence most sought by the police to prove their case.16 This prompts the police to see the suspect as ‘a possible source of confession’ or at least ‘a possible informant’.17 McConville et al. add that the police perceive every suspect as a ‘repository of information’ or a ‘hidden data bank’.18 However, in order to access this data bank, the police must identify the offender accurately from among an often large group of potential suspects. Here the police tend to exercise a great deal of discretion in identifying individuals from groups of suspects; as discussed below, this notion of discretion is a significant determining factor of the quality of information that may be obtained. The police often adopt certain arbitrary classifications to understand their constituencies, and most of these classifications involve one or multiple criteria related to race, religion or social class.19 Correctly identifying the problems inherent to these categorisations, McConville et al. note: ‘The suspect population is constructed on the basis of a complex interaction of rules and principles. But they are police – rather than legal – rules and principles. They are not illegal but simply arise from the discretion which the police enjoy’.20 In many cases, an individual is identified as a suspect simply because they belong to a certain racial group or neighbourhood, rather than 15 Husak, ‘Orthodox model of the criminal offense’, p. 20; Peiris, Offences under the Penal Code of Sri Lanka, pp. 57-64. 16 See Sanders and Young, ‘From suspect to trial’, p. 1046. 17 McConville et al., The Case for the Prosecution, p.  61 (citing Banton, Policeman in the Community). 18 See McConville et al., The Case for the Prosecution, p. 65. 19 Lutz et al., ‘British trials of Irish nationalist defendants’, p. 237. Lutz et al. discuss the creation of a ‘suspect community’ in Britain – the Irish Catholic community. According to Jefferson, the notion of ‘police discretion’ (which in some cases allows the police to make partial, ‘class-based’ decisions) has recently been adopted more often in place of the conservative assumption of police impartiality. See Jefferson, The Case against Paramilitary Policing, p. 47. 20 McConville et al., The Case for the Prosecution, p. 15.

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because the police have reasonable grounds to believe that the individual has committed the crime in question. For example, in the US and Britain, people in the ‘middle-class areas’ are not regarded as reasonably suspicious by the police, while people in the ‘working-class areas’ are often perceived as suspicious.21 Further, male members of ethnic minority groups are more likely to be drawn into the category of ‘official’ suspect groups than are those from the majority.22 McConville et al. add: ‘The suspect population is not a sub-set of the criminal population [offenders] […] the reverse is true: the criminal population is a sub-set of the suspect population’.23 The simplified suspect categories (created based on police discretion) have therefore been criticised as they reflect ‘racial antagonism’, rather than being driven by ‘public necessity’,24 and could be ‘burdensome’ to racial minorities.25 The police also apply a great deal of discretion when they isolate individuals from the suspect group. Sanders and Young claim that the ‘discretion’ of the police officer is the main factor that determines whether or not someone is ‘suspicious’.26 Although the law requires the police to identify and arrest a suspect based on ‘reasonable suspicion’, the law is ‘sufficiently vague and flexible’ to allow the police to apply a significant degree of discretion, often based on the individual officers’ ‘stereotypical cues’.27 Investigating the British counter-terrorism experience in Northern Ireland, Lutz notes that, by classifying Irish Catholics as the ‘suspect community’, the police found reasons to ‘convince themselves’ that they arrested the right person.28 This conviction, which is often explained as the ‘hunch’ of the police officers, becomes a crucial factor in exercising their discretion in claiming ‘reasonable suspicion’ and thereby identifying the suspect.29 It is undeniable that the extent of such police discretion can lead to unlawful arrest and detention. The strategies used by the Sri Lankan police in identifying the suspect population and individual suspects are equally tainted by the arbitrary 21 Ibid., p. 28. 22 See Wrightsman and Kassin, Confessions in the Courtroom, p. 62; McConville et al., The Case for the Prosecution, p. 16; and Jefferson, The Case against Paramilitary Policing, p. 47. 23 McConville et al., The Case for the Prosecution, p. 14. The ‘criminal population’ is those who have officially identified as offenders, based on the their previous conviction records. 24 See Korematsu [1994] 323 U.S. 214. 25 See Metro Broadcasting v FCC [1990] 497 U.S. 547. Also see Levin, ‘Responses to race differences in crime’, pp. 154-155. 26 Sanders and Young, ‘From suspect to trial’, p. 1038. 27 McConville et al., The Case for the Prosecution, p. 16. 28 Lutz et al., ‘British trials of Irish nationalist defendants’, p. 234. 29 Kassin, ‘True or false’, p. 177. Also see McBarnet, Conviction Law, p. 4; and Amnesty International, Racism and the Administration of Justice, pp. 2, 15.

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decision-making of police officers. According to the field data gathered in this research, Tamil Tiger suspects were arrested via one of three main ways: (a) targeting and arresting certain suspects based on specific pieces of intelligence received by the police; (b) arresting suspects through ‘round-up’ operations (sometimes the suspects are identified by a spotter in disguise); and (c) arresting suspects randomly – for example, at checkpoints or railway stations. While targeted arresting remains a small proportion of the total number of arrests, most of the Tiger suspects are captured by random and mass-scale arrest. All the suspects that have been arrested in these mass-scale operations are Tamils, identified by their Tamil names and accents. The majority of these suspects are unemployed and come from poor rural villages, while only a few are from middle-class families. The suspect population includes married men and women with families, as well as minors as young as fifteen years old. The common criteria for identifying the suspect population appear to be its Tamil ethnicity, unemployed status and membership of lower socioeconomic groups, which has led to widespread stereotyping. Extreme underrepresentation of Tamils in the police service and security forces only exacerbates this discriminatory practice, and could have a significant impact on the accuracy of suspect identification methods. While the aforementioned limitations and flaws inherent to certain policing strategies (in Sri Lanka or elsewhere) remain problematic, implementing counter-terrorism laws in the context of the state of exception shifts the paradigm underpinning police-suspect interactions. In this war, the police-suspect paradigm is transformed into one of a combatant-enemy paradigm. Examining the work of both Agamben and Schmitt, Munster argues that in the war against terrorism suspected terrorists are referred to as an ‘unlawful combatant’ or ‘foe’, thus characterising the terrorist as a ‘morally degraded other’.30 In this context, the notion of the enemy comes to replace that of the offender or criminal, so that the police search for a suspected enemy rather than a suspected criminal. This shift of paradigm has serious implications for police procedures as well as for the attitudes and behaviour of individual officers. One consequence is that it is deemed appropriate for suspects to be subjected to harsher conditions that restrict their liberty. Studying British counter-terrorism measures adopted in Northern Ireland, Lutz et al. observed that British counter-terrorism laws targeted persons of Irish Catholic background, and suspects who were ‘innocent or marginally connected to the crimes’ have been arrested and prosecuted to ‘discourage others from supporting the Irish Republican 30 Munster, ‘The war on terrorism’, p. 149.

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Army’.31 British India’s anti-Thuggee campaign provides another example of such a paradigm shift. Referring to this campaign, Lloyd asserts that the extraordinary police and judicial procedures used (which were defended as a temporary departure from normal legal values) were justified because the Thuggees were perceived as ‘criminal wretches’ at war with the government; therefore, they had forfeited any right to the benefit of its law.32 Similar observations have been made in relation to the counter-terrorism laws in Sri Lanka. Wickramasinghe notes: ‘The tough draconian laws introduced in Colombo are of no use if the merchants of death [the terrorists and their sympathisers] are spared […] the government should be praised for reactivation of PTA and other relevant laws’. He adds that the Tigers and their sympathisers should not be treated as ‘law abiding citizens’.33 It is not only an ‘enemy’ that is created in the state of exception, but also new forms of combating mechanisms. Under counter-terrorism measures, the police are given additional powers, weapons, and special paramilitary units to combat the enemy.34 With the intensif ication of the civil war, countless special units emerged in Sri Lanka. The Special Task Force (STF), the oldest paramilitary unit, operated as an army brigade which had a reputation for responding brutally to the insurgencies in the north and south. Later, a number of small units also came into existence: Special Investigation Units (SIUs), Rapid Deployment Units (RDUs), Terrorist Investigation Divisions (TIDs), and military intelligence units attached to various brigades. These units were supposed to be highly mobile, undertake quasimilitary missions, and engage in search-and-destroy operations against the enemy. They were primarily set up in ‘high security zones’ to which the general public had no access. As a result of the introduction of these units, the roles of the military and the police became more closely aligned, and in some cases were exchanged: police officers fought the terrorists on the military frontlines, and army soldiers interrogated the terrorist suspects at army intelligence units.35 This paramilitary type of policing is focused on destroying the enemy rather than on crime prevention. Explaining the 31 Lutz et al., ‘British trials of Irish nationalist defendants’, p. 238. 32 Lloyd, ‘Thuggee, marginality and the state effect in colonial India’, pp. 201, 202, 209. 33 Wickramasinghe, Under Attack, pp. 23-24. 34 Field observations and interviews (June-August 2007). Also see the discussion on paramilitary policing by Jefferson, The Case against Paramilitary Policing, p. 2. 35 For example, as presented in the previous chapter, both Sellapulle and Nallaratnam were initially interrogated by military intelligence agents and their confessions recorded in a military police facility in Batticaloa. Also see the discussion on paramilitary policing in Jefferson, The Case against Paramilitary Policing, p. 2.

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peculiar nature of paramilitary-style policing, the former Chief Constable of Devon John Alderson notes: ‘The difference between the quasi-military and the civil policeman is that the civil policeman should have no enemies […] Once that kind of language [the notion of the “enemy” instead of the “criminal”] gets into the vocabulary, it begins to change the attitudes’.36 Like mainstream policing, the paramilitary model of policing may also incorporate a system that persecutes minorities. Jefferson adds that the paramilitary-style model is operated with the agreement of the simple majority of the public, while those on the receiving end of this policing are invariably minorities.37 There is a significant flaw in Sri Lankan paramilitary-style policing. In these paramilitary units, minimal resources have been invested in sophisticated intelligence-management techniques, training secret agents or procuring technology. Hence, like the mainstream police institutions, the paramilitary units lack a systematic method for collecting intelligence.38 They have therefore relied largely on extracting confessions from suspects to secure prosecutions in the courts,39 and on the intelligence received from their detainees to enable the arrest of new suspects. 40 This dependence of the Sri Lankan police on the suspect population to gather intelligence links to a problem mentioned previously: that police view every suspect as a ‘repository of information’ or a ‘hidden data bank’.41 This paramilitary-style policing strategy entrapped the Sri Lankan police in a cycle of having to round up and arrest people en masse in order to identify more suspects. However, this process of identifying and arresting suspects based on the above strategies did not prove effective against the Tamil Tigers, because the LTTE was well organised in terms of their military and political strategies, including counter-intelligence management. By infiltrating state-controlled areas and punishing police informants, the Tigers successfully prevented 36 Northam, ‘A fair degree of force?’, pp. 3-5 (cited in Jefferson, The Case against Paramilitary Policing, p. 1.). 37 Ibid., p. 43. 38 Field interviews, Colombo (June 2007). 39 Field interviews, Colombo (June 2007). These paramilitary units have been able to provide only confessionary evidence against the suspects, apart from minor exceptions. Only 2 out of the 28 confessions of the sample of this research were accompanied by additional evidence. One suspect who was convicted had a fake identity card in his possession. The police listed a parcel of explosives as evidence against the second suspect, but failed to produce them in the court and the suspect was released, as his confession was rejected by the court. 40 For example, as explained in the next chapter, Nallaratnam describes how the officers of the paramilitary units in which he was detained attempted to gather intelligence from suspects. 41 See McConville et al., The Case for the Prosecution, p. 65.

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the flow of intelligence to the police. 42 Conversely, by arresting individuals at checkpoints and round-ups based on unreliable criteria reinforced by racial stereotypes or a police ‘hunch’, the police ended up detaining large numbers of innocent civilians. These flaws in the policing strategies could be rectified through the application of reliable investigation methods, to ensure that innocent civilians are not incarcerated. The question is: How reliable are the investigation methods used by the police and paramilitary units in distinguishing Tamil Tigers from Tamil civilians?

Secretive investigations and the right to silence Governments in South Asia, including the Sri Lankan Government, have been criticised for their ‘retention of outdated and ineffective models of policing’.43 These systems reward individuals who achieve results by unethical means, to such an extent that unethical behaviour becomes endemic in the police culture. These practices are not restricted to the South Asian region, and it was only a few decades ago that many Western democracies began reforming their police forces to eliminate unethical practices. Although such practices are no longer openly tolerated in the West, old police instruction manuals and the reports of independent inquiries into police corruption provide an insight into certain dubious practices in recent history. These materials reveal the existence of both formal procedures and informal traditions that encouraged police officers to construct false evidence to incriminate suspects. Certain parities can be noticed between the former practices of Western police forces and those of modern South Asia. According to Dixon et al., the practice of fabricating statements was entrenched within Australian police culture until the 1980s, and those who were not willing to fabricate statements faced a great deal of peer pressure and were often forced to put their career progression on hold if they were reluctant to engage in such practices. 44 A witness in the Fitzgerald Inquiry into corruption in the Queensland Police Service said: ‘It [fabricating stories to implicate guilt] was just accepted. When a person was arrested the police would sit down at the typewriter and […] you would make up the story as you went along. There is virtually no risk involved for police’. 45 A senior 42 See Chapter 2 for further detail. 43 Mehta, Feudal Forces, Democratic Nations, p. 12. 44 Dixon and Travis, Interrogating Images, p. 6. 45 Ibid., p. 5.

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investigator of the NSW Police had once said, ‘when you haven’t got much, pull them in. The brief will only get better’. 46 The controversial police manual, Criminal Interrogations and Confessions, written by American authors Inbau et al., provides an insight into the principles and systems that encouraged the construction of confessionary evidence. 47 The authors advise that ‘[a]n interrogation involves active persuasion’ and add: ‘along with putting aside personal feelings, the qualified interrogator must feel comfortable using persuasive tactics that may be considered morally offensive to some investigators’. Inbau et al. state that during interrogation officers must repeatedly inform the suspects of their known guilt for their crimes, refrain from acknowledging or accepting the suspect’s pleas of innocence or denials, elicit the suspect’s trust by minimising their responsibility for their alleged crime and sympathising with them, and raise the suspect’s anxiety level by repeatedly assuring them of their role in the crime. The authors recommend that officers should not delay recording a written confession after the oral confession is provided, because in the interim the suspect might change his/her mind, particularly when the suspect is held with other prisoners. Inbau et al. advise: ‘No time should be lost […] in preparing for and obtaining a written, signed confession’. The authors also provide suggestions as to how to make the confession more convincing in court. They write: ‘a woman stenographer is an excellent safeguard against fake claims of brutality or other improper conduct on the part of the interrogator. A jury is not apt to believe that she would be a participant in any such impropriety’. 48 In Make ’em Talk! Principles of Military Interrogation, McDonald instructs: ‘If you have subjects under your physical control, you can wear them down and make them easier to exploit […] One of the simplest methods to debilitate people physically is to severely limit their food intake or intermittently refuse the food altogether’. 49 Despite reforms over the last few decades, the practice of coercing suspects to confess seems to continue, albeit in a rather inconspicuous manner, in the West. For example, police interrogation practices often involve convincing suspects that their situations are hopeless and using ploys to convince suspects of their guilt by emphasising the embarrassment caused to their family and the harm caused to the victims. During interrogation, 46 Dixon, A Culture of Corruption, p. 49. 47 Inbau et al., Criminal Interrogations and Confessions. 48 Ibid., pp. 120-123. 49 McDonald, Make ’em Talk!, p. 44, cited in Gudjonsson, The Psychology of Interrogations and Confessions, p. 8.

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without being specif ic the police can allude to the opportunities for leniency if the suspect confesses.50 In such hostile environments, it is not surprising that many suspects ignore the formal cautions (of their right to not answer self-incriminating questions) and eventually admit their guilt for crimes that they may not have committed. According to McConville et al., if a confession is fabricated, obtaining the suspect’s signature requires little persuasion because the suspect is likely to ‘say and sign anything’ in order to escape the atmosphere of hostility.51 Kassin notes that such hostile environments may also compel a vulnerable, worn-out suspect to believe that s/he is guilty of an offence that s/he has not committed.52 In this scenario, the suspect may give a confession known as a ‘coercedinternalised confession’, believing that s/he is guilty of something that s/he has not done.53 The above-cited evidence paints a very bleak picture for a suspect in police custody under ordinary circumstances, and a state of emergency only makes the situation more damaging, as the suspect’s civil liberties are suspended. Under such circumstances, we must ask how far a Tamil Tiger suspect is able to exercise his/her free will in giving, or choosing not to give, a confession. To what extent is a suspect capable of substantiating any defence under section 24 of the Evidence Ordinance (that confessions taken by inducement, threat or promise are inadmissible)? Although section 24 of the Evidence Ordinance continues to be in force under the counterterrorism measures in Sri Lanka,54 it appears that these measures propagate the very oppressive elements (inducement, threat or promise) purported to be restricted by the Ordinance. This is because these measures also equip the police with powers to use oppressive methods to interrogate a suspect by: (a) allowing indefinite detention outside judicial protection; (b) ensuring the secrecy of the investigation process; and (c) retracting the right to silence of the suspect. Indeed, these oppressive measures are pre-emptive steps taken by the state to prevent suspects from accessing any evidence that could prove any inducement, threat or promise on the part of the police. 50 Henkel and Coffman, ‘Memory distortions’, p. 572. 51 McConville et al., The Case for the Prosecution, p. 66 (citing Williams, ‘The authentication of statements to the police’). 52 Kassin, ‘True or false’, p. 178. 53 Coerced-internalised confessions could come into existence when the suspects lose confidence in their own innocence, feeling confused and in a heightened state of suggestibility which gradually leads to a distrust of their own recollections and beliefs. See Henkel and Coffman, ‘Memory distortions’, p. 568. 54 See Chapter 1.

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The voluntariness of a confession derives from the suspect’s right to silence; thus, a confession is presumed to be voluntary only if the suspect was able to exercise this right. Although the Constitution of Sri Lanka does not guarantee the right to silence, section 110 (2) of the Code of Criminal Procedure explicitly protects a suspect’s right to silence. This section states that the suspect is bound to answer the questions of a police interrogator but that the suspect does not have to provide answers that could ‘expose him to a criminal charge’. In contrast, counter-terrorism laws retract the suspect’s right to silence by enacting specific provisions that force the suspect to cooperate with interrogators. Section 5 of the PTA provides that the failure to report any information related to an act of terrorism is a punishable offence. The provisions that allow the indefinite detention55 of suspected terrorists effectively remove suspects from the protection of the judiciary, allowing them to be lost in a realm of secrecy, held by paramilitary institutions. This secrecy is reinforced by the state’s bureaucracy (by issuing detention orders) and the code of silence upheld by the rank-and-file of the police.56 The police often argue that maintaining the secrecy of an interrogation is the only way to protect the evidence and other witnesses, who could be influenced by the suspect in their custody.57 However, according to McConville et al., shielding police interrogation from external scrutiny has historically been viewed with ‘deep suspicion’.58 The secrecy surrounding investigative processes helps the police to reject claims of ill-treatment of suspects and to disclaim their liability, because the suspect is unable to bring independent evidence to prove their exposure to abuse while in custody. In particular, during a period of a state of emergency, the details of paramilitary units that arrest and detain suspects are often not provided to the family members of suspects. For example, when the suspect’s family reports a missing person, the police often deny any connection to the arrest or advise that the suspect has already been released.59 In some cases, the suspect simply ‘disappears’60 on their way to work or school, because they are 55 See Chapter 1. 56 The detention order is issued by the Ministry of Defence. Based on the evidence obtained from the f ield observations and interviews, the police do not acknowledge that they have arrested a particular suspect and the suspect’s whereabouts may be concealed for a long time. Also see the example of Veerakarthi in Chapter 3. 57 Field interviews, Colombo (June 2007). 58 McConville et al., The Case for the Prosecution, p. 56. 59 Field interviews, Colombo (June 2007). 60 The term ‘disappearance’ is used in Sri Lanka to explain the fact that a person has been arrested by unidentified personnel.

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abducted by secret paramilitary units. During the course of this research, a medical officer mentioned that once when he was examining a Tiger suspect brought to him by the police, another patient came forward, claiming that the suspect was her son who she had not seen for six months since his ‘disappearance’. Another Tiger suspect was kept incommunicado for a year during which time his family believed that he was dead.61 When suspects are in police custody, in many cases they are denied access to legal assistance and lawyers are not allowed access to the police interview rooms. Indeed, most of the time lawyers are required to obtain written permission from the Ministry of Defence to gain access to their clients (suspected terrorists), and in the majority of cases permission is granted for the lawyer to meet with the suspect only in the presence of a police officer, who could listen to their conversation.62 It is clear that these secretive investigative mechanisms are designed to allow, if not encourage, the police to apply oppressive methods and coerce confessions from suspects. Behind closed doors, the police can apply pressure or force such as deprivation of food and sleep or physical assault against tough or silent suspects who are not willing to speak. Further, the Emergency Regulations authorise the police to dispose of the bodies of suspects without conducting an autopsy – a provision that has been criticised as ‘active encouragement’ of torture of suspects in custody, and for institutionalising abusive practices.63 During the field interviews, a senior police officer denied that police assault suspects in custody in the present day, although admitted that such assaults have been widely practised in the past.64 The officer added: ‘As the police officers are now appointed, disciplined, and dismissed by an independent commission, the officers are not risking any complaints from the suspects. If a complainant goes to the Supreme Court to file a fundamental rights application, the officer could be temporarily or permanently dismissed or even be asked to pay compensations’.65 Defence lawyers disagree: ‘Despite the clear wording of our Constitution, enunciating the presumption of innocence, persons 61 Field interviews, Colombo (June 2007). 62 Field interviews, Colombo (June 2007). 63 The UN Special Rapporteur on Torture reported that torture and other forms of ill-treatment are employed on a widespread basis by members of the security forces in Sri Lanka, particularly against Tamils held in detention. See E/CN.4/1999/61, paras. 659-669, in Dias, ‘The role of the Attorney General’, p. 342. Also see the discussion on command responsibility and vicarious liability on perpetrating torture that appears in Jayewardene, Catching the Big Fish, pp. 6, 7, 32-39. 64 Field interviews, Colombo (June 2007). 65 Field interviews, Colombo (June 2007).

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arrested by the police are, more often than not, presumed guilty and treated in like fashion’.66 A defence lawyer who had appeared for many Tamil Tiger suspects said: ‘At least 70% of my clients had been severely tortured and the rest have been assaulted […] Once I recall outside the courtroom one police officer casually admitting, “we hit them and type the confession. The ASP only signs papers later”’.67 There is an endemic belief among Sri Lankan police officers that ‘the only way to get the truth from the suspect is to bash them’.68 Some are of the opinion that ‘if torture is not allowed in the police stations, they will have to close down the stations and go home’.69 Even ordinary suspects (not terrorist suspects) such as common thieves or sex workers in Sri Lanka are subjected to torture and other types of ill-treatment on an almost daily basis.70 It is evident that terrorist suspects who are held in special units and under long-term detention orders, with limited or no access to the outside world, are treated far more brutally than are common criminals. This harsh reality is reiterated in Ramani’s story 71: I was arrested by the police while I was at work. I was not given any reasons for the arrest. They forced me to get into the police jeep. There were four police officers including the driver. The police officers assaulted me in the jeep, slapping across my face, kicking me with their boots, stabbing with their guns and they abused me using filthy words. I told them that I want to see my parents but my parents were not informed of my whereabouts. I was taken to a dark room without windows. I was interrogated for a long time. The interrogating team included 12 police officers but there were no female officers. The officers said that I was arrested because they received information that I had been supporting Tamil Tigers. I denied all the allegations because I did not have any connections with Tamil Tigers. One officer was seated with a typewriter and typed while the others interrogated me. I was not allowed to see what was typed. 66 Sumanatilake, Torture, p. 96. 67 Field interviews (June 2007). The lawyer did not seem to consider physical assault such as slapping to be a form of torture. 68 Public Seminar on Convention against Torture, Colombo (25 June 2007) and Seminar on Istanbul Protocol (July 2007, Galle, Sri Lanka). 69 Public Seminar on Convention against Torture, Colombo (25 June 2007). 70 See Hanlon and Dabhoiwala, The Other Lanka. Also see Fernando and Puvimanasinghe, X-ray of the Sri Lankan Policing System. 71 Field interview (August 2007).

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The combination of the evidence cited above strongly suggests that the voluntariness of a confessing Tiger suspect could only exist in exceptional circumstances; thus, the vast majority of Tigers’ confessions were likely obtained by force. This means that these confessions do not meet the admissibility criteria of section 24 of the Evidence Ordinance, regardless of whether their contents are true or false. Here we revisit the first half of the question posed earlier: How have the state’s agents enforced the counter-terrorism measures among the suspect population in Sri Lanka? In answering this question, it was established that, by adopting counter-terrorism measures, the state has actively ignored suspects’ fundamental rights, and applied interrogation methods specifically designed to coerce confessions. These findings prompt us to revisit the submissions presented in Chapter 1 in relation to the impact of the state of exception on the suspects detained in paramilitary camps. Agamben argues that war-time ‘camps’, such as Nazi concentration camps, are born out of the state of exception, and that the judicial foundation of such custodial arrangements is the proclamation of the state of exception.72 He adds: ‘The camp is the space that is opened when the state of exception begins to become the rule’.73 Agamben notes that modern ‘camps’ such as immigration detention centres are also the products of the state of exception; thus, ‘bare life’74 continues to exist in such places in the present time.75 Arguably this notion of the ‘camp’ describes the paramilitary camps in which Tamil Tiger suspects are held and interrogated. As the exception becomes the rule, the detainees’ fundamental rights (for example, the right to the presumption of innocence, the right to be free from arbitrary arrest, and the right to be brought before a magistrate upon arrest) are suspended in the camp.76 Agamben notes that in camps ‘power confronts nothing but [the] pure life’ of the detainee.77 He asserts: [I]f the essence of the camp consists in the materialization of the state of exception and in the subsequent creation of a space in which bare life and the juridical rule enter into a threshold of indistinction, then we 72 Agamben, Homo Sacer, p. 167. 73 Ibid., pp. 168-169. 74 ‘Bare life’ refers to a human who lacks the rights and legal status of a citizen or ‘a pure simple corpus’ – a concept based on homo sacer, a figure in archaic Roman law. See Chapter 1 for further detail. Also see Agamben, Homo Sacer, p. 11. 75 Agamben, Homo Sacer, p. 174. 76 Article 15 of the Constitution of Sri Lanka allows the suspension of these fundamental rights under a state of emergency. 77 Agamben, Homo Sacer, p. 171.

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must admit that we find ourselves virtually in the presence of a camp every time such a structure is created, independent of the kinds of crime that are committed there and whatever its denomination and specific topography.78

The existence of the terrorist suspect in the paramilitary camp in Sri Lanka, whose constitutional rights are suspended under the counter-terrorism laws, mirrors this ‘bare life’. Agamben claims that ‘bare life remains included in politics in the form of the exception, that is, as something that is included solely through an exclusion’.79 He continues: ‘In this zone of indistinction, the central figure one encounters is that of homo sacer, bare life stripped of all its value in the sense that violence against him/her remains unpunished’.80 Similarly, the Sri Lankan terrorist suspect in the camp is excluded from the protection of the Constitution through deprivation of her/his fundamental rights, such as the right to be free from torture. It should be noted that although ‘right to be free from torture’ is a constitutional right that theoretically cannot be removed in a state of emergency, the immunity granted by the state to its agents in the camps indirectly allows physical pain to be inflicted upon the suspect in order to extract a confession.81 This has been confirmed by the interviewees in the field carried out during the course of this research. Supported by a graphically detailed medical certificate, Ramani continued: After the interrogation, the police officers started consuming alcohol. The police officers tied my hands to a chair. They gagged me with rags so I could not make any noise or ask help from outsiders. They closed the doors and tortured me, bashing me with clubs made of PVC tubes filled with cement. They assaulted me using wires and cables. The police officers who were wearing boots trampled all over my body. They untied the ropes and forcefully removed my dress. I pleaded kneeling down before the officers not to take off my dress but they did not listen to me. Without taking any breaks, until close to the midnight, they continued to torture me with clubs, wires and their boots. They burnt me with cigarette butts and they burnt a plastic bag and poured the burning plastic liquid on my body.82 78 Ibid., p. 174. 79 Ibid., p. 11. 80 Munster, ‘The war on terrorism’, p. 143. 81 For a detailed discussion on immunity and on releasing police from vicarious liability see Jayewardene, Catching the Big Fish. 82 Field interview (August 2007).

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Punishment of the suspect The second part to the question posed at the start of this chapter – How have counter-terrorism measures impacted on individual suspects? – can also be answered with reference to the discussion of bare life. Earlier it was established that the agents of the Sri Lankan state are able to corporeally punish terrorist suspects outside the domain of the law by excluding the suspect’s ‘bare life’ from the rule of law. This approach to punishment by the state marks a crucial shift in the penal regime, as it shifts the focus of the penalty from the norm (rule of law) to the exception (force of law). According to Foucault, punitive interrogation combined with the public spectacle was replaced by the ‘punitive panoply’ of the prison, born of an ‘economic rationality’ that calculates the penalty and prescribes appropriate punitive techniques.83 He adds that the new form of government is based on the rationale of self-restraining liberalism: that is, to ‘govern less’ for ‘maximum efficiency’, in contrast to the forms of discipline developed by eighteenth-century institutions.84 Evidently, this sophisticated ‘biopolitical’ control mechanism of the state coexists with the punitive interrogation mechanisms (that said to have been replaced by the modern, ‘economically rational’ systems) within the paramilitary camps in Sri Lanka, and in the counter-terrorism interrogation centres in the West, such as Guantanamo Bay detention centre.85 Foucault explains the coexistence of these dual penal regimes: ‘traces’ of torture remain in modern systems ‘enveloped’ and labelled as non-corporal punishment,86 when the prisons are not considered adequate to discipline and punish offenders. Nonetheless, the endemic practice of torture in Sri Lanka embodies far more than ‘traces enveloped’ in the modern system, and Foucault’s theory offers only limited insight into this phenomenon. Article 11 of the Constitution of Sri Lanka provides that ‘no person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’, and this provision cannot be restricted by a state of emergency. However, according to studies conducted by medical practitioners and defence lawyers, a range of torture methods are administered against terrorist suspects and common criminals in Sri Lanka. These methods include: 83 Foucault, Discipline and Punish, p. 92. Also see Golder, ‘Foucault and the unfinished human rights’, p. 370. 84 Foucault, Security, Territory, Population, p. 357. 85 Ramsay, ‘Can the torture of terrorist suspects be justified?’, p. 116. 86 Foucault, Discipline and Punish, p. 16.

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dusting chilli powder in the eyes of the suspect, beating the body, ‘falanga’ (suspension by hands), ‘dry submarino’ (covering the head with a bag), ‘wet submarino’ (covering the head with a bag containing liquid such as gasoline or forcing the victim’s head into a water tank), suspension by feet, beating the genitals, burning the body, cutting the body, beating ears, ‘parrot perch’ (binding with ropes), applying gasoline on the body, cramped confinement, ‘Dharmachakra’ (suspension by spreading the arms and legs and tying them to a horizontal bar to spin the suspending body around the axis of the bar), ‘Palestinian suspension’ (suspending the victim with the forearms bound together behind the back with the elbows flexed 90 degrees, and forearms tied to a horizontal bar or beam), ‘telephono’ technique (clapping hands violently next the victim’s ears), and sexual torture.87 The more prisoners take a stand against the police by claiming they were tortured in custody, the more innovative the torture methods invented and applied by the police become.88 These new methods cause significant pain, but leave very few or no physical marks. Whipping the prisoner with the dried penis of a bull is one such method that has been invented by the police that shows little or no scars after torture.89 It is important to note that in Sri Lanka torture is not always practised secretly in paramilitary units shielded from the public view. In many cases, torture is administered inside ordinary police stations, which are located in populated town centres, from where the public could hear and sometimes even view the ordeal.90 Although torture in police stations was not meant to be a public spectacle, there seems to be a certain degree of public knowledge and acceptance of such extra-judicial punitive methods in Sri Lanka. Defence lawyers believe that the public widely supports torture in custody on the justification that ‘the police bash the suspect because the suspect is guilty’.91 The Sri Lankan state has a history of administering torture, both as a method of interrogation and as one of corporal punishment. In the chronicles of ancient Sinhalese kingdoms, 32 methods of torture were described.92 87 Sumanatilake, Torture, pp. 31-56; and De Zoysa and Fernando, ‘Methods and sequelae of torture’, p. 54. 88 Seminar on Istanbul Protocol (July 2007, Galle, Sri Lanka). 89 Field observations on a seminar on investigating, documenting and reporting torture (July 2007). 90 See Hanlon and Dabhoiwala, The Other Lanka. Also see Fernando and Puvimanasinghe, X-ray of the Sri Lankan Policing System. 91 Public Seminar on Convention against Torture, Colombo (25 June 2007) and Seminar on Istanbul Protocol (July 2007, Galle, Sri Lanka). 92 De Zoysa and Fernando, ‘Methods and sequelae of torture’, p. 53.

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The more severe methods, which were inflicted only by the King’s men, included being trampled by an elephant and being impaled on a pointed iron pole. The less harmful methods included making the offender immobile by locking his ankles within the holes between two horizontal wooden bars (dandukanda), or tying the offender to a tree and exposing him to being bitten by venomous red ants. These torture methods have been reported in Sri Lankan villages as recently as 60 years ago,93 are referenced in Sinhalese legends and folklore, and some have been reapplied with certain modifications to terrorise the public in the war against terrorism. For example, during the insurgency that occurred in 1989-1991, both the state and the terrorists (Sinhalese youth led by the JVP) practised the ritual of exhibiting the dead bodies of the executed enemies, tied to lamp posts or discarded, half burned on makeshift roadside pyres made of old motor vehicle tyres.94 The civil war manifestly installed a culture of violence across the island, and both terrorists and the state actively sponsored torture, sometimes employing almost identical techniques.95 The Tigers ran a number of large prisons in various parts in the northern and eastern provinces. When the army captured the Tigers’ base in Thoppigala forest in mid-2007, many were surprised to see the purpose-built prison cells and torture chambers the Tigers had been using to punish their opponents.96 Tiger leaders too were obsessed with obtaining confessions from their prisoners as proof of their punishment.97 Evidently the legends of the country that are based on a violent history and militaristic culture have contributed to the deep-rooted practice of torture in Sri Lanka, but there seem to be other reasons for the state-sponsored corporeal punishment in the war against terrorism. We might question why the state has relied on cruel and corporeal punitive systems, instead of adopting modern panopticistic or biopolitical strategies, by comparing the efficacy of these punitive regimes in the context of the war against terrorism. This enquiry will assist us further in understanding the links between the practice of torture and the confession, by gaining an insight into the function and purpose of torture in relation to punishment, rather than investigation. Certain aspects of the work of both Foucault and Shoemaker can be presented to further this discussion. 93 Field interviews, Colombo (June 2007). 94 Field interviews (May-August 2007). Also see Perera, Living with Torturers; and De Silva, ‘Hatred and revenge killings’, pp. 15-27. 95 Somasundaram, Scarred Minds. 96 Field interviews, Colombo (August 2007). Also see Dorakumbura, Vanniye Rana Handa. 97 See Somasundaram, Scarred Minds, p. 191.

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According to Shoemaker, the infliction of pain disappeared from modern punishment regimes not because we became more moral, but because the authorities received a greater return from ‘epistemological dominance’ when prison discipline replaced the gallows and the whipping post.98 The war against terrorism changes the dynamics of the relationship between the state and its subjects, enabling the state to gain significant returns by means of despotic dominance rather than epistemological dominance. Ramsay argues that, in addition to obtaining information from suspects, torture has been used to assert and confirm the unconstrained power of the state ‘to degrade and dehumanise the enemy, to force the silencing and betrayal of their beliefs and values, to signify the end of their normative world’.99 The punishment that a torture victim receives becomes an example or symbol of the power and authority of the regime. Pointing to the operations of the US Army in Iraq, Ramsay adds, ‘torture has been used as a method of total domination and social control’.100 Manderson agrees, noting that torture creates ‘generalised fear about [the] infinite and random power of the state to destroy lives, and an intense sense of vulnerability in [the] victim population’.101 According to Somasundaram, the torture of political prisoners in Sri Lanka is no different: By torture, the inner resistance, ideological commitment, identity, selfrespect, and personality of an individual are systematically destroyed by a judicious mixture of physical and psychological pain […] War is no longer considered a matter of straightforward destruction of each other by two sides ‘till one submits. It has become a more psychological battle for the mind. Control of the minds of the populace through fear and terror appears easier and more direct.102

Shoemaker suggests that in medieval times, the pleasure of killing and torture was socially acceptable due to the social sensibilities and cultural attitudes towards the infliction of punishment held by the members of that society, but that later the ‘delight of cruelty’ gradually became ‘restrained’, ‘privatized’ and ‘suppressed’.103 The war against terrorism has reversed this transformation by creating numerous conditions for the people to 98 Shoemaker, ‘The problem of pain in punishment’, p. 16. 99 Ramsay, ‘Can the torture of terrorist suspects be justified?’, p. 116. 100 Ibid., p. 116. 101 Manderson, ‘Another modest proposal’, p. 36. 102 Somasundaram, Scarred Minds, p. 141. 103 Shoemaker, ‘The problem of pain in punishment’, p. 20.

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release their restrained and suppressed delight in cruelty. Researching the impact of the PTA on torture victims, Somasundaram adds that there is a ‘strong element of sadistic pleasure for the torturer’.104 Further, the historic animosity against the Tamils is displayed, communicated, and sponsored by the state through public campaigns that condemn terrorism and glorify membership of the state’s military institutions, such as through recruitment drives; thus, such campaigns can be seen to have unleashed the restrained ‘delight of cruelty’. It is possible that these state-sponsored sentiments could have persuaded the Sinhalese population to condone torture by turning a blind eye to the cruel treatment of terrorist suspects. Moreover, insofar as the counter-terrorism measures indirectly indemnify the acts of torture by enacting safeguards,105 the state appears to have actively provided opportunities for the perpetrators to enjoy the delight of cruelty and the sight of pain. Describing the function of torture in medieval Europe, Foucault notes, ‘it is as if investigation and punishment had become mixed’, adding that torture is a way of ‘complementing’ punishment when the penalties are not deemed sufficient to the crime.106 This suggests that torture comprises an inherent motive and strategy to punish the suspect. Further, such punishment inevitably complements or supplements the ultimate sentence of the court (dependent on the decision of the court as to the suspect’s guilt or innocence).107 Therefore, it could be argued that torture acts as a pre-emptive punishment of suspects. In Sri Lanka a range of evidence has emerged suggesting that torture is primarily used for punishment, rather than for gathering evidence. According to a study conducted by an officer of the Sri Lankan Human Rights Commission, in 58 police stations in southern Sri Lanka (between October and December 2001), in 95 out of 101 cases the police had tortured the suspects not with the aim of obtaining information, but simply to ‘punish’ them. In these cases, the police already had the evidence needed to charge the suspects.108 These findings indicate that the confession 104 Somasundaram, ‘Torture in Sri Lanka’, p. 111. 105 For example, the Emergency Regulations allow the police to dispose of the body of the suspect without conducting an autopsy. Also see the discussion on command responsibility and vicarious liability on perpetrating torture in Jayewardene, Catching the Big Fish, pp. 32, 39. 106 Foucault, Discipline and Punish, p. 41. 107 Although some lawyers have argued that prolonged detention constituted ‘cruel, inhuman or degrading’ treatment, the Supreme Court held that detention of a person pending investigation or trial did not constitute punishment or deprivation of personal liberty. See Kumaranatunga v Samarasinghe ([1983] 2 FRD 347) and Karmegam v Jansz and Others (25 SC 100/87 minutes 28 January 1988). 108 Interviews with a former employee of Sri Lanka’s Human Rights Commission in June 2007.

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has become a by-product of torture, rather than being constructed from the information gathered by inflicting torture. The findings also suggest that confessions play a major role in institutionalising torture, by providing a defence for the perpetrators against potential complaints. According to Somasundaram, many ex-detainees claim that they were labelled ‘guilty’ by the police who used fabricated confessions as justification for their torture and detention.109 He adds that torture survivors believe that the treatment they received was actually meant as punishment, of themselves directly and of their community indirectly. As proof of this contention, survivors point out that the torture they received became far worse when the police or military suffered a loss outside the prison. In some cases, the only explanation that could be given for the harsh methods of torture used is the perpetrator’s delight in cruelty. In this regard, Ramani added: Later the police officers came to me one by one and raped me. Due to the continuing torture and raping, I was feeling dizzy, lifeless and I was almost unconscious. When I awoke, I found my hands were untied and I was laying on the floor naked. The 12 police officers were still in the room and laughed at me saying; ‘You knew nothing. We all had you’. In the next day, the police officers continued torturing me. They poured water mixed with chilli powder on my head. I screamed with burning pains in my eyes and face. Later the officers asked me to admit that I have connections with Tamil Tigers. They asked me to sign a statement. They brought a bundle of papers typed in [the] Sinhalese language. I was not allowed to read the documents and they did not explain the content of the documents either. I was not conscious enough to understand the content of the document[s]. They threatened to kill me if I don’t admit and sign a statement. I signed the statement, as I did not have any other options. I was fearful that I would be tortured and killed if I didn’t sign the statement. I was very weak and did not have any courage to oppose or question the officers. They said they would send me home after I signed the statement. They asked me to say that ‘I am a Tiger’ in the court.110

This disturbing narrative was corroborated almost word for word by the judicial medical officer who described the signs of torture on Ramani’s 109 In other words, in producing (fabricated) confessions the police could justify their use of torture by claiming that they were only able to gather evidence against the terrorist by means of such torture. Somasundaram, Scarred Minds, p. 259. 110 Field interview (August 2007).

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body in graphic detail.111 Although modern punishment is intended to ‘strike the soul rather than the body’,112 the state of exception has reversed this trend. Reflecting on the violence of the terrorists and the state, Silva argues that political violence involves violence perpetrated against the body, demonstrating the ‘end results’ on the body.113 He adds that by displaying such end results, constructions of political violence are given meaning: ‘Mutilation and dismemberment of the living and the dead, torture, burning, beating, rape, and disappearance, are all situated practices of violence that involve the body in one way or another’.114 Presenting a similar view, Manderson notes that torture reduces a person to a ‘body’, such that ‘the very bodies of the tortured become abject puppets forcibly made to act’ to demonstrate the authority of the torturer.115 Thus, it could be argued that the confession is used as a tool to access the body of the enemy who is to be punished corporeally.116 Conceptualising how the body (as opposed to the soul) is nominated as the site of punishment could be elaborated by revising the concept of bare life. De Mel argues that the sovereign decides the threshold between the good and bare life, schematising a ‘logical figure of the enemy’. She explains: Once surveyed and categorised this way, the suicide bomber is deemed by the sovereign for the sake of the nation to have transgressed, outside of morality and so, fit to be outlawed. The normative state of exceptionality permits that anything can be done to her from slander to killing […] In this state the body of the female suicide bomber becomes the site of bare life itself, stripped of rights, constitutive of a compromised humanity.117

Torture, coupled with the confession, is also used as a strategy of vengeance. Foucault claims that a criminal who breaks the ‘pact’ with society by committing an act of crime becomes an ‘enemy’ of society, which gives the sovereign the right to punish the enemy. He adds that in the modern 111 The medical report was viewed at the field interview. The prosecuting lawyer withdrew the charges against Ramani because the prosecution could not prove Ramani’s voluntariness; the detailed medical report included evidence of torture. 112 Foucault, Discipline and Punish, p. 16. 113 De Silva, ‘Hatred and revenge killings’, pp. 21-22. 114 Ibid., pp. 21-22. 115 Manderson, ‘Another modest proposal’, p. 28. 116 According to De Silva, ‘[T]he body is a site of violence, where political power is exercised through hegemony and contested through resistance [and] the living body can therefore be perceived as “animated text”’. See De Silva, ‘Hatred and revenge killings’, p. 21. 117 De Mel, Militarizing Sri Lanka, p. 242.

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era this ‘right to punish’ and right to enact ‘vengeance’ of the sovereign has shifted to the ‘defence’ of society.118 However, this notion conflicts with the realities of the war against terrorism in Sri Lanka, because vengeance was promoted by both parties to the war. This urge for revenge may have its origins in the ‘ancient’ racial animosity between the Sinhalese and Tamils. Somasundaram argues that the sense of belonging to one’s ethnic group, and the struggle to maintain that group identity, was the basic cause of the Sri Lankan conflict: ‘the enormous death and destruction as well as the economic and social costs of war set into motion hostilities, suspicions and thirst for revenge that may take generations to work their way through’.119 There is evidence to suggest that inflicting cruelty and torture against suspects in detention was encouraged as an act of revenge.120 The military and the police were unofficially given permission to punish civilian bystanders and neighbouring villagers whenever the Tigers launched an attack on the military. Such acts of revenge were habitually practised by the police or military when their friends and colleagues were attacked by the rebels.121 One prisoner described his experiences while held in a paramilitary unit in a town of the eastern province in 1990 (an account that was later corroborated by a second prisoner who was in detention in this unit at the same time): Whenever Tigers launched an attack against the army or police, they [the paramilitary officers] would torture us to avenge the Tigers. Once they have raped about 10 women in front of me. The officers said: ‘the Tigers are sleeping. Now it is the playtime for the lions [the Sinhalese]’. When they were raping, all other prisoners could see it [punishment]. It was awful. The women were from our village and I knew them. Some of the women were students and some were married women. The charges against them were that they were giving food to Tigers. Also they tortured the men so brutally. A few people died during torture. They threw the bodies of the dead prisoners into the sea.122

Not surprisingly, there developed a sense of deep and institutionalised hatred towards the Sinhalese among the Tamil Tigers. Through this institutionalised hatred (which often harnesses an individual’s personal 118 Foucault, Discipline and Punish, p. 90. 119 Somasundaram, Scarred Minds, p. 92. 120 See Alles, Insurgency, p. 213; Somasundaram, Scarred Minds, p. 92; and Somasundaram, ‘Torture in Sri Lanka’, p. 111. 121 See UTHR reports at www.uthr.org. Also see Somasundaram, Scarred Minds. 122 Field interview (August 2007).

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sentiments), Tigers legitimised their punishment of the enemy or their ‘traitors’. One Tiger admitted: ‘If 10 Tamils are killed by the army, we would go and kill 10 Sinhalese’.123 There have been reports that the LTTE had strategies in place to divert their members’ personal urge for revenge towards its organisational goals. Tigers allegedly recruited Tamil women raped by the Sinhalese armed forces into a military unit called the ‘Birds of Paradise’ to train them as female suicide bombers.124 Dhanu, who assassinated the former Indian prime minister, Rajiv Gandhi, claimed to have been a rape victim of the Indian Army and chose to become a suicide bomber to have her personal revenge.125 The ‘anomic space’ created by the state of exception, where the truth and the law become ‘confused’,126 constitutes an environment that encourages the desire to avenge the enemy. This is because, as Agamben notes, 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’.127 Confession can best be understood within this context, as a piece of evidence that justifies the ‘pure violence’ permitted by the state of exception. It is also used as a shield that protects the perpetrator who commits such violence.

The truth of torture Discussing the medieval institutions of torture, Foucault notes that if the suspect is guilty, the pain inflicted upon him/her is justified; and if the suspect is not guilty, the pain marks the exculpation of his/her innocence. This justif ication of torture concedes that such interrogation systems cannot prevent innocent people from being subjected to pain, and the system tolerates the infliction of pain on innocents for the sake of finding the truth about a crime. This was reiterated in a study conducted by the Asian Human Rights Commission on 31 torture cases involving 46 victims, 123 Swamy, Tigers of Sri Lanka, p. 335. 124 Bloom, Dying to Kill, p. 87. 125 Kaarthikeyan and Raju, Triumph of Truth, p. 159. 126 Agamben writes: ‘The state of exception is an anomic space in which at stake is a force of law without law’ (p. 39). He adds: ‘Whoever entered the camp moved in a zone of indistinction between outside and inside, exception and rule, licit and illicit, in which the very concepts of subjective right and judicial protection no longer made any sense.’ See Agamben, Homo Sacer, p. 170. 127 Agamben, State of Exception, p. 51.

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which revealed that all the victims appeared to be innocent.128 According to Foucault, torture is a ‘physical challenge that defines the truth’,129 which means that whatever the victim admits at the end of the ordeal is unequivocally accepted as the truth by the perpetrator. Thus, it can be argued that physical pain marks the criteria of truth for the interrogator – pain becomes one of many criteria applied to calculate the polysemic truth of a confession. Here we come to answer the question: How reliable is the criteria of pain, and how much truth can a tortured suspect produce in her/his confession? Torture-based interrogation strategies are built on the widely accepted belief among police that they can gather useful information by torturing the offender because humans have an intense desire to avoid pain and offenders will comply with the demands of a torturer in order to avoid pain.130 Thus, the power of torture comes from the perpetrator making the victim believe that it is inevitable that the pain will not stop unless the victim speaks.131 What if the victim has nothing to say? Somasundaram reveals the harshest reality: Those whom the security forces seek to punish are little different from the ordinary man in the village. Torture thus becomes a coarse-grained tool to shift through a community in the hopes of coercing a confession of involvement from someone […] there are inevitably many ‘innocents’ who also get caught in the net. Those who ‘talk’ under torture may actually know very little but in a desperate attempt to attain release, may give false information.132

Fernando adds: ‘Even if they [police] are unable to extract any information, most victims are willing to confess to any crime and sign any statement after their brutal torture. The police proudly produce them before courts as suspects of unresolved crimes in the vicinity’.133 Not surprisingly, only poor and destitute people from disadvantaged groups have been subjected to torture, not affluent or educated people. In Fernando’s research, a senior police officer who was one of a few to advocate against the use of torture, stated that when he asked his officers why they would resort to using force against their suspects, they cited many contributing factors, including a lack 128 Hanlon and Dabhoiwala, The Other Lanka, p. 77. 129 Foucault, Discipline and Punish, p. 41. 130 Bagaric and Clarke, ‘The “yes” case can outweigh the “no”’. 131 Ibid. 132 Somasundaram, Scarred Minds, p. 259. 133 Fernando and Puvimanasinghe, X-ray of the Sri Lankan Policing System, p. 7.

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of resources, training, and experience, and pressure from their superiors to solve crimes. He adds: ‘When I asked them whether I was correct in saying that [in] almost all the instances of torture in police custody, the victims were poor, the destitute and the defenceless, they sheepishly admitted it was so’.134 According to Manderson, not only does torture produce ‘exceptionally unreliable information’ but it is also ‘largely useless’.135 Torture in fact ‘produces’ terrorists, as those who have been tortured join terrorist groups seeking vengeance.136 The myth that torture is a truth-making tool has serious implications for the justice system: the police, the courts, the lawyers, and the public may come to believe that a confession is truthful because it was extracted from a terrorist who experienced the pain of torture. This myth could foster a delusion that all Tigers’ confessions always contain truthful accounts of crimes. Such a delusion could also create a dangerous trend among the judiciary to have faith in the testimonies of the interrogators and to pardon their abusive practices. The evidence submitted in this chapter overwhelmingly supports the assertion that the counter-terrorism investigative strategies adopted in Sri Lanka lack the efficacy to produce voluntary confessions, and thus lack legal truthfulness. Further, the materials presented in this chapter have empirically established that it is highly likely that the confessions recorded by applying torture lack semantic truthfulness. By investigating the efficacy of the counter-terrorism policing strategies used by Sri Lankan police, and their impact on the individuals who have been subjected to such strategies, this chapter has dispelled the myth of torture as a truth-making tool, and thereby dispelled the myth that confessions extracted by torture contain truthful accounts. Ironically, the Sri Lankan state and its agents have continued to reinforce this myth in the public domain, thus receiving popular support from the masses. The next chapter will examine how the judiciary responds to this myth about the truth of confession. The next chapter will return to the domain of the law to question how the defence of the terrorist is tested against the prosecution by the judiciary, amid the broader influences of political and ethnic sentiments.

134 Ibid., pp. 52-53. 135 Manderson says that the ‘turning point of many Al-Quaida operatives was their imprisonment and torture in Middle Eastern prisons’. Manderson, ‘Another modest proposal’, p. 33. 136 Ibid., p. 36.

5

Judgement of the terrorist against the ‘formula of justice’

Early in this study we discussed Spivak’s submission that the war against terrorism has ‘zoomed down to a lawsuit and zoomed up to face an abstraction: terrorism’.1 The previous three chapters have further explored this ‘abstraction’ of terrorism, by venturing beyond the domain of the law in order to grasp the competing versions of truth about confessions. Now we return to the domain of the law as it is not possible to cover this subject matter adequately without ‘zooming in’ to examine lawsuits, where the ultimate ‘legal truth’2 of confessions is redefined. This chapter will link with the previous chapter through a discussion of the construction of cases against terrorists. In seeking to answer the question, ‘What are the possibilities and limits of a fair hearing for Tigers from the judiciary in Sri Lanka?’, this chapter includes an enquiry into the procedural aspects of the court case with the aim of establishing whether the terrorist suspects were given a fair trial. Further, the materials explored in this chapter allow us to revisit the notion of legal truth about confessions, by assessing the substantive and procedural elements of the counter-terrorism laws (domestic law) against the standards of international human rights law (international law). The key case study presented in this chapter is that of Nallaratnam Singarasa whose confession was assessed against the ‘semiotic criteria’ of truth in Chapter 3. The methodology used in this chapter involves presenting and analysing research materials on barriers in the criminal justice system, analysing data gathered from the field interviews and field observations, and analysing court transcripts and law reports. The pinnacle of Sri Lanka’s legal war against terrorism is enacted in the High Court where a judgement is made to determine the truth about the confessions of Tamil Tigers in order to convict or acquit them. This is the final act in this legal war, where the suspect must face the public in a theatrical 1 Spivak, ‘Terror’, p. 82. 2 Earlier, the ‘triple criteria of truth’ was discussed. The criteria include the elements that help in assessing the truthfulness of text-based confessionary narratives: (a) legal criteria based on the concept of ‘legal admissibility’ under the law of evidence; (b) semantic criteria based on the concepts of ‘plausibility’ and ‘probability’, which establish whether the events outlined in a confession could have occurred in the real world; and (c) semiotic criteria, based on the syntactical, spatial and temporal unity of the narratives, which involve investigating the linguistic elements using forensic linguistic techniques. See Chapter 3 for further details.

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enactment of bringing justice to the citizens affected by terrorism. Here the secret rituals of interrogatory punishment are brought to a close through a humiliating court trial in which terrorist suspects are herded into court alongside other criminals, tied to each other with iron chains and guarded by uniformed prison officers with machine guns. For the first time the Tiger suspect is given the opportunity to speak out through the representation of a lawyer, and describe his/her version of the circumstances under which his/her alleged confession came into existence. That the suspect has this opportunity for representation and to seek justice suggests that the Sri Lankan state is a fair player, which is particularly important in the eyes of the international community, insofar as these court hearings purportedly uphold the defendant’s right to a fair trial. Thus, it could be argued that this enactment of justice may reinforce the notion of a ‘just war’3 against terrorism. However, the justice system in Sri Lanka has attracted much criticism for its unfair treatment of suspected Tamil Tigers. 4 This chapter aims to verify the fairness of the judicial process, which determines the truth of confessions. To achieve this objectives, the chapter first focuses on how the case against a terrorist suspect is constructed. The processes of the justice system from arrest to final appeal are explained, followed by a discussion of the factors that obstruct the fairness of the system. Finally, the formula or legal methodology that is used by the judiciary to determine the legal truth about a confession will be discussed through a critique of the judgements made in Nallaratnam.

‘Finite justice’ in the journey of the criminal justice system As discussed in Chapter 1, a clear trend emerged among the Sri Lankan judiciary to reject the vast majority of confessions of Tamil Tigers as inadmissible 3 As presented in Chapter 1, terrorism is distinguished from ‘just war’, which contains the following notions: legitimate authority to fight (as opposed to revolutionary violence), causa justa or just cause (which prohibits the intentional killing of innocent civilians), right intention, proportionality (the war does not create more ‘mischief’), prospects of victory and the last resort (ultima ratio). See Steinhoff, On the Ethics of War and Terrorism, pp. 2-33. 4 For example, Manoharan notes: ‘Sri Lankan courts failed to check the repressive character of the country’s counter-terrorism laws. Lack of independence and undue political interference were partly responsible for this’. See Manoharan, Counterterrorism Legislation in Sri Lanka, p. 42. Also see Asirwatham, ‘Reintegrating ex-PTA political prisoners’, pp. 26-31; Dias, ‘The role of the Attorney General’; Fernando and Puvimanasinghe, X-ray of the Sri Lankan Policing System; Hanlon and Dabhoiwala, The Other Lanka; and Manoharan, Counterterrorism Legislation in Sri Lanka.

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evidence; however, this trend has not deterred the continuance of the mass prosecution strategy and the indicting of terrorist suspects en masse based on confessionary evidence. By rejecting the majority of these confessions, the judiciary was able to grant a certain degree of justice to the terrorist suspects. Nonetheless, it can be argued that the justice granted to these suspects (by rejecting inadmissible confessions) was somewhat narrow and finite, as only in a handful of cases were the suspects compensated for their unlawful arrest, torture or prolonged detention.5 From arrest to prosecution, these suspects may be faced with unjust treatment on numerous occasions (such as prolonged detention and torture), but the High Court only determines whether the confession is legally admissible and whether the suspect is guilty of the offences included in the confession. This notion of ‘finite justice’ can be further elaborated by exploring the journey of a suspect through the criminal justice system, which is represented in Figure 5.1. From the arrest by the police to the conviction or acquittal by the court, a suspect must journey through the justice system, passing a set of milestones that include the checkpoint, the paramilitary camp, the Court of Appeal (if a habeas corpus Application is filed), the Magistrates Court (to f ile a report on the remand order), remand or special detention centres, the High Court and prison (if convicted). However, suspects experience this journey in various ways, depending on a range of factors. The jurisdictions of each institution through which the suspect is taken have their own authorities and limitations; thus, the concept of a fair trial needs to be defined according to a specific formula (which includes the substantive and procedural elements of the law) that is relevant to the jurisdiction of the specific court of law. To explore the journey of a terrorist suspect through the Sri Lankan justice system, we can begin by revisiting Ramani’s story presented in the previous chapter. Ramani was arrested at her workplace and was f irst taken to the paramilitary camp where she was interrogated. She was then moved to an ordinary police station, where she was formally detained, until a detention order was issued by the Ministry of Defence. Later she was brought before a magistrate who ordered that Ramani be kept in remand until the serving of the indictment. The magistrate did not release her on bail or assess the validity of her confession, as the Magistrates Court does not have jurisdiction on such 5 It is important to note that the High Court only determines whether the guilt of the suspect is proven beyond reasonable doubt. It does not have the jurisdiction to compensate the suspect. On a limited number of occasions terrorist suspects have been compensated in the Supreme Court.

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Figure 5.1 Journey of the suspect through the criminal justice system

Checkpoint (arrest)

Habeas Corpus Application to the Court of Appeal

Camp (interrogation) Released due to adverse evidence e.g. torture Police station (formal custody)

Fundamental Rights Application to the Supreme Court

Magistrates Court (remand order)

Remand (protective custody) Guilty plea High Court (indictment and trial)

Court of Appeal (first appeal)

Supreme Court (final appeal)

Acquitted (released)

Convicted (imprisoned or a suspended sentence)

matters.6 Unlike the situation at the camp, while in remand Ramani was detained in the protective custody of prison officers. While she was in 6 The PTA does not grant specific powers to magistrates to release suspects on bail, and neither does it include specific provisions that prevent the release of suspects on bail. Based on the field observations carried out in this research, it is evident that a few magistrates have released Tamil Tiger suspects (who have not been indicted) on bail, but that the majority of magistrates do not release Tiger suspects on bail. According to the field observations and interviews, no one has challenged this inconsistency in the system.

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remand, she was able to access a lawyer and file a fundamental rights application in the Supreme Court. The Supreme Court’s jurisdiction in a fundamental rights case is limited to the provision of remedies for violation of the applicant’s constitutional rights; therefore, the court did not hear the validity of Ramani’s confession. Hence, the Supreme Court ordered that the Attorney-General (the prosecutor) should either prosecute her or release her. Later Ramani was indicted and finally the validity of her confession was determined at a hearing in the High Court, two years after her arrest. Ramani was acquitted as the prosecution withdrew the indictment due to the submission of strong medical evidence that proved her torture while in custody. In the domain of the law, there are five possible actions for the judicial system to take when a confession is recorded: (a) the police decide not to press charges and to release the suspect (for example, if the suspect has assisted the police in the arrest of others); (b) the Attorney-General decides not to file an indictment because adverse evidence such as evidence of torture in custody emerges at a fundamental rights application hearing in the Supreme Court; (c) the Attorney-General files an indictment at the High Court but later withdraws the charges because of adverse evidence (as happened in Ramani’s case); (d) the suspect pleads guilty in the High Court and thereby avoids a trial; and (e) the suspect stands trial in the High Court, to be convicted or acquitted. This means that although justice can be denied to a suspect during her/his journey through the system, only at a trial in the High Court can the truthfulness of a confession be verified. This jurisdictional puzzle in the legal war against terrorism seems to have been orchestrated by the state to serve many purposes, including that it allows only a single outlet for the determination of the truthfulness of a confession. The possibility for a suspect to end this journey at any of the crossroads (and to be released by the Supreme Court or the Court of Appeal) prior to a trial being conducted is very narrow, because all of the legal institutions involved in the process effectively accept the confession as a valid piece of evidence (the truthfulness of which can only be determined at a High Court trial).7 This prima facie value of the confession is based on three key factors: (a) the signature of the suspect on the confession; (b) warrantees of the police officers that the confession was given voluntarily; and (c) section 80 of the Evidence Ordinance, which provides that a statement taken by an off icer authorised by the law is presumed to be genuine. 7

Field observations and interviews (June 2007).

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Nallaratnam’s confession, which was recorded on 11 December 1993, included all of these key factors, which thus determined the prima facie value of his confession: The officer who is recording my confession unfolded his service identity card and informed me that he is Police Superintendent H.M.D. Herath from the Colombo Criminal Investigation Department. I recognised this gentleman. Also I was explained that the statement I am giving is recorded by this gentleman under the powers he has been given by the Prevention of Terrorism Act and the Emergency Regulations. I was explained that my statement given according to the above sections could be submitted against me as evidence in a court hearing. I was informed that I should not be giving my statement due to any promise, threat or inducement. Because I can’t understand Sinhalese language, I have no objections in recording my statement in the Sinhalese language because my statement is explained in Sinhalese. I was explained the charges against me.8

The voluntariness of Nallaratnam’s confession and his willingness to conform to the authority are clearly signified by this narrative. The suspect states that he has no ‘objections’ to his confession being recorded in Sinhalese and does not withdraw his confession when cautioned that it may be used against him as evidence in court. At the end of the confession, the suspect explicitly admits his guilt and conveys his sense of remorse: I admit the charges of receiving the training of LTTE organisation, as a result of that training attacking places such as Jaffna Fort army camp, Palali army camp, Elephant Pass army camp and Kankasanthurei and killing army officers and attacking an army patrol who were checking the road in Aranthalawa and shooting and killing army officers.9

Two years after supposedly giving this confession, Nallaratnam faced a judge in the Colombo High Court, charged with f ive counts under the PTA, including conspiring to overthrow the legally elected government and attacking government police and military posts. The first witness of the prosecution, the ASP H.M.D. Herath, claimed that the defendant who 8 The Republic of Sri Lanka v Nallaratnam Singarasa; HC Case No 6825/94 (unreported). See the Appendix for the complete confession, which is a verbatim translation. 9 The Republic of Sri Lanka v Nallaratnam Singarasa; HC Case No 6825/94.

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was produced before him had stated that he wanted to voluntarily give a confession. The witness added that he gave the defendant time to think about his decision, and then recorded the confession with the support of Constable Hasim, who translated the defendant’s Tamil confession into Sinhalese and typed the confession in Sinhalese.10 When the prosecution sought the judge’s permission to mark the confession as evidence, the defence lawyer objected. The judge then declared a voir dire inquiry, or a ‘trial within the trial’, to determine the admissibility of the evidence or voluntariness of the confession (as opposed to its content), tentatively disregarding the offences included in the confession. In the cross-examination, the police witnesses rejected allegations of torture and rejected the defence’s submission that the confession was never recorded before the ASP but that the defendant was forced to sign the alleged confession before the ASP. Then Nallaratnam was called to give evidence to support his defence11: Q: A: Q: A:

Following arrest you were taken to where? To Kommadure camp. What did they do after taking you to the army camp? My hands were tied and [they] hanged me from a mango tree and assaulted me. Q: Please spell out to the court what happened. A: After assaulting me that day I was taken to Batticaloa Jail at about 5.30 pm… Q: By taking you to the army camp what was done? A: I was put into a water tank and by force pushed and kept me under water. Later I was assaulted. After assaulting me like that, a statement was obtained from me and [they] detained me again. Q: Were you injured because of that assault? A: I was injured […] Q: Did you state to [tell] anyone like this [police] officer [who gave evidence earlier] that you intended to make a confession? A: No.

10 See the Appendix for the complete confession. 11 Copied from the court proceedings translated by the defence lawyer (The Republic of Sri Lanka v Nallaratnam Singarasa; HC Case No 6825/94; trial date 13/01/1995). The translated materials were not altered, amended or corrected in this research. Editorial notes are provided in square brackets.

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Q: The confession report that was recorded, [which was] intended to submit as a confession [as evidence] earlier – was it read and explained to you? A: No. Q: The off icer who did the typing typed [the confession] looking at [something] or typed only a portion [adding to what] had been typed [earlier]? A: There was a paper in front [of the typist]. [He] typed by often looking at [reading] it. Q: Typed what was in the paper? A: Yes. Q: Were you questioned on anything? A: No. Q: Not even one question was asked? A: [I was] asked whether I have got education. I said no. [I was] asked whether I was employed. I said I do unskilled work [labour work]. Disregarding Nallaratnam’s claims of torture, the judge accepted the confession as a voluntary statement at the conclusion of the voir dire inquiry. The prosecution then marked the confession as a piece of evidence in the trial but did not submit independent evidence to corroborate the content of the confession. However, based on the confession, the High Court judge convicted Nallaratnam. Later, Nallaratnam appealed to the Court of Appeal and then to the Supreme Court, but both of these courts affirmed the previous judgement as a correct verdict. Based on the findings of the forensic linguistic analysis in Chapter 3, principally that Nallaratnam’s confession was fabricated, it could be argued outside the domain of the law that justice was denied to Nallaratnam by this chain of judgements. Yet can the same be argued within the domain of the law? Can this chain of decisions of the three courts be questioned within the existing legal framework? According to Laudan, a criminal trial is not ‘an epistemic engine’ that ‘ferrets out truth’, but rather is a dispute-resolution mechanism that provides a verdict by comparing ‘facts’.12 He adds that this dispute-resolution mechanism could produce a ‘false inculpatory finding’ by declaring an innocent person guilty, or could produce a ‘false exculpatory finding’ by failing to convict a guilty person.13 A great deal of research demonstrates 12 Laudan, Truth, Error, and Criminal Law, pp. 2, 13. 13 Ibid., p. 10.

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that the use of confessionary evidence is one of the main causes of the miscarriage of justice.14 The ‘Central Park jogger case’,15 held in New York in 1989, was one among many such cases where the confessions of the suspects were blindly accepted by the judiciary as truthful evidence. In this case, five African American and Hispanic American young boys aged between fourteen and sixteen were convicted on confessionary evidence of raping and murdering a jogger. It took thirteen years to exonerate the convicted young men when the real perpetrator, who was in prison for another conviction, stepped forward and gave a confession which was independently corroborated. Arguably, similar occurrences of the miscarriage of justice due to the wrongful admittance of confessionary evidence may have taken place, unnoticed and unquestioned, in justice systems around the world. Kassin asserts that there is a ‘generalised common sense’ which leads people to trust confessions – false confessions can be compelling as they often contain vivid and accurate detail about the crime, and the victim and the public believe that no one would confess to a crime that they did not commit.16 Kassin provides three reasons for why innocent people might confess and be convicted 17: (a) innocent people are often targeted, despite the absence of any evidence of their involvement, based on the ‘investigator’s hunch’; (b) innocent people may be induced to confess to crimes that they did not commit; and (c) police officers, prosecutors, judges and juries routinely believe that false confessions are true. These submissions have been conf irmed by various studies,18 including experimental research based on mock trials, which have shown that confessions have a greater influence on conviction rates and are deemed to be more incriminating than eyewitness or character testimony.19 Based on the above considerations, one could argue that the Tamil Tiger suspects may have been convicted wrongfully through the Sri Lankan state’s mass prosecution strategy, which relies solely on confessionary evidence. To conclusively verify this claim, a thorough investigation of a 14 See Bronitt, ‘Law enforcement immunities’, p. 225; Dixon and Travis, Interrogating Images, p. 1; Greer, Supergrasses; Greer, ‘The right to silence’; Lutz et al., ‘British trials of Irish nationalist defendants’. 15 Kassin, ‘True or false’, pp. 172-173. 16 Ibid., pp. 181-186. 17 Ibid., pp. 173-186. 18 McConville and Baldwin, Courts, Prosecution, and Conviction, p. 160; Dixon and Travis, Interrogating Images, p. 1; Greer, Supergrasses; Lutz et al., ‘British trials of Irish nationalist defendants’; Bronitt, ‘Law enforcement immunities’, p. 225; McConville et al., The Case for the Prosecution, p. 67. 19 Henkel and Coffman, ‘Memory distortions’, p. 567.

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suitable sample20 of cases is required, although this is not attempted within this chapter. However, by investigating certain elements and processes within the Sri Lankan criminal justice system, we may be able to identify problematic areas that could cause or allow the miscarriage of justice. Therefore, it is important that we do not limit the scope of this discussion to the court hearing alone, but also consider the broader elements involved in the pre-trial stage, such as case construction and the roles played by the prosecutor and police witnesses. Thus, before examining the judgements of Nallaratnam, we can consider the broader aspects of the domain of the law that could influence the ‘legal truth’ about confessions.

Constructing the case against the terrorist In recent years, criminologists have begun to question the value of ‘evidence’, enquiring whether materials of evidence simply exist in the domain of the law or are ‘constructed’. On this subject, McConville et al. argue: ‘The police have, at a most fundamental level, the ability to select facts, to reject facts, to not seek facts, to evaluate facts, and to generate facts. Facts, in this sense, are not objective entities which exist independently of the social actors but are created by them’.21 The authors claim that the police construct a criminal case in ways that boost the quality and content of their evidence or reduce the quality according to their wishes.22 McConville et al. add: ‘the degree of control enjoyed by the police over case production is not constant but varies according to a host of factors, including case seriousness, the nature of the internal supervision, the structure of legal provision and so on’. The authors note that, in all cases, the police decide how ‘reality’ is to be ‘officially determined’.23 McConville et al. further submit that the selection of an appropriate charge itself forms part of the case construction: ‘once chosen, the charge itself becomes the organising matrix around which the case is built, and which governs the creation, selection, interpretation, and presentation of the evidence’.24 McBarnet presents a similar view, asserting that certain police procedures ensure that only ‘filtered versions of reality’ 20 The sample used in this project includes 28 court cases that were based on confessionary evidence. This is an inadequate sample to form an opinion on conviction by the court, as only 4 of the defendants in this sample were convicted. 21 McConville et al., The Case for the Prosecution, p. 56. 22 Ibid., p. 31. 23 Ibid., p. 37. 24 Ibid., p. 116.

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appear in court as the ‘end product’ of an interrogation which includes the confession. Hence, cases appear either ‘strong’ or ‘weak’ depending on the versions of the story created following the pre-trial negotiations and pre-trial evidence gathering that take place with the cooperation of the witnesses.25 As the legal war against terrorism is fought on the basis of such case construction as described by McBarnet and McConville et al., so too are terrorists themselves constructed. However, the construction of the terrorist in the domain of the law encompasses different dimensions, linked to aspects of the state of exception (as opposed to ordinary law), the identification of the defendant as the enemy or terrorist (as opposed to the ordinary criminal) and the ultra-crime of the terrorist act (as opposed to a general crime).26 According to Spivak, the terrorist is an ‘abstract enemy’ – an ‘epistemological construction’ of ‘the other’ as one who is seen as an ‘object of knowledge’. She adds: ‘Epistemological constructions belong to the domain of the law, which seeks to know the other, in his or her case, as completely as possible, in order to punish or acquit rationally, reasons being defined by the limits set by the law itself’.27 Thus, Spivak establishes the terrorist as ‘the other’ or the unknown outsider who must be fully known, while also acknowledging the inherent dilemma in the law seeking to know this unknown and ‘abstract enemy’ without sufficient knowledge or evidence. Ironically, the state purports to resolve this dilemma by seeking evidence from the enemy him/herself, by extracting confessions. In terms of the Sri Lankan experience, the Tiger terrorist is constructed within the domain of the law, using the confession as the source of knowledge of the enemy. The ‘object of knowledge’ or ‘abstract enemy’ is defined by the confession, which supposedly bears the enemy’s own words. Further, this enemy is created within the boundaries of the law; for example, the Evidence Ordinance prescribes the rules by which the confession may be recorded. Conversely, there is a clearly manifest and visible representation or reality in the construction of the terrorist in the domain of the law, which is not captured by Spivak’s conceptualisation. The abstract notion of the terrorist comes into existence in the real world when the terrorist defendant is brought to the court and made to face the judge. According to Gibbons, there are two ‘planes of realities’ which are in ‘constant interaction’, as evident in courtroom discourse: (a) the primary reality, which is the courtroom and 25 McBarnet, Conviction Law, p. 94. 26 See Chapter 4. 27 Spivak, ‘Terror’, pp. 82-83.

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the people present therein; and (b) the secondary reality, which incorporates the events that are the subject matter of the hearing, presented as narratives.28 These interactive planes of reality constructed in the courtroom are expressed through a range of visual and verbal representations of image and narrative: (a) the court, and the architectural and performative arrangements enacted in the space of the courtroom; (b) the corpus or body of the defendant and his/her attributes, including style of dress, skin colour, posture, language, and accent (and the degree to which these align with the stereotypical attributes of a terrorist); and (c) the narratives presented by the confession, combined with the charges in the indictment. How does the epistemological or manifest construction of the terrorist within the domain of the law influence the act of determining the truth of a Tamil Tiger’s confession within the court? According to McConville et al., the criminal justice system generates a ‘double effect’: the positive effect of the administration of justice, and the negative effect of ‘disproportionately stigmatising’ the offender.29 Such stigmatisation can result in fatal consequences for a terrorist suspect due to a number of reasons. First, a terrorism offence is based on the notion of political or religious ‘motive’ shared by a group of people (in contrast to ‘criminal intention’ or mens rea in other types of offence).30 Accordingly, the mere presence of this motive defines a terrorist offence; therefore, the terrorist-defendant can be held liable simply for membership of a group or for an ideology, rather than for a particular criminal act. For example, in proscribing the LTTE, the Sri Lankan state stipulated that mere membership of this organisation was an offence.31 In this construction, there seems to be a degree of fluidity in the definition of a terrorist-defendant insofar as the offence of terrorism transcends the vicarious limitations of an ordinary crime.32 Second, the state of exception suspends the normal judicial order, limiting the provisions that ensure procedural fairness. Investigating the 28 Gibbons, Forensic Linguistics, p. 78. 29 McConville et al., The Case for the Prosecution, p. 130. 30 See Nolan, ‘Lay perceptions of terrorist acts’. 31 The Gazette notification 1721/2 proscribed the Tamil Tigers renders membership of the LTTE an offence. The PTA does not explicitly state that membership is an offence. However, section 11 of the PTA states that the Minister of Defence can order the detention of members of an unlawful association. 32 Nolan argues that the common law position on motive versus intention has led to concern over the definition of the ‘terrorist act’ in Australia. He notes that in Hyam v DPP ([1975] AC 55) a distinction was drawn between proof of intention and evidence of motive, and adds: ‘motive, at best, may constitute some form of circumstantial evidence for proof beyond reasonable doubt of intention as the requisite mens rea element’.

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state of exception created by the British colonial anti-Thuggee campaign, Lloyd notes that, once Thuggees had been discerned as exceptional criminals, their prosecution necessitated the creation of a ‘novel sphere’ of authority, defined by the suspension of the existing juridical order.33 Similarly, a novel sphere was created when the Sri Lankan Government established a state of exception in the country, suspending the defendant’s constitutional rights34 by passing and implementing the PTA. Third, the war against terrorism has transformed the defendant-prosecutor dynamic (similar to how the war has altered the paradigm of the police-suspect relationship to become an ‘enemy-combatant’ relationship, as discussed in the previous chapter). Because the terrorists are constructed as ‘foes’ or ‘criminal wretches’,35 the antagonism of the prosecution towards the defendant is aggravated; therefore, the defendant can be subjected to harsher treatment than would otherwise be the case in his/her journey through the justice system. These harsher treatments could be prompted by the law itself (for example, extended detention without bail) or be meted out in the way the law is enforced (such as the arbitrary application of discretionary powers by the police, prosecutors or judges). Therefore, under the state of exception the terrorist-defendant faces a dangerous uncertainty by no longer being protected by the provisions that ensure procedural fairness. As elaborated in the preceding sections, the rigidities of legalistic methodologies, combined with certain inequities imposed by the counter-terrorism regime, can suppress rather than uphold the truth of confessions.

Inequalities in the justice system36 The legal truth about a crime can be verified only if the defendant is given the opportunity to submit his/her version of the crime at a hearing. However, according to criminologists, such opportunities rarely exist in the criminal justice system; instead, the system contains many routines that can isolate or 33 Lloyd, ‘Thuggee, marginality and the state effect in colonial India’, p. 234. In Chapters 1 and 4, it was established the similarities between British India’s anti-Thuggee campaign and Sri Lanka’s counter-terrorism campaign. 34 Article 15 of the Constitution of Sri Lanka allows the suspension of this fundamental right under a state of emergency. 35 See Munster, ‘The war on terrorism’, p. 149. Also see Lloyd, ‘Thuggee, marginality and the state effect in colonial India’, pp. 201, 202, 209. 36 Information provided in this section is mainly compiled from the field observations and field interviews with lawyers and suspects carried out in this research.

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ignore the defendant. McBarnet suggests that the police, prosecution lawyers, and defence lawyers function as ‘networks of shared understanding’, creating ‘alliances of alleged adversaries’, thus removing the defendant from the ‘routine’ of judicial procedures, which is ‘mystified by the language, bureaucracy, and processes of justice’.37 Such ‘alliances’ between lawyers and the police could also facilitate highly corrupted practices, particularly in countries like Sri Lanka. There have been reports in Sri Lanka of police officers referring defendants to the police’s ‘preferred’ lawyers and obtaining commissions of up to 50 per cent of the legal fees, and these lawyers advising defendants to plead guilty to appease the police.38 The counter-terrorism measures could only exacerbate the sense of isolation defendants experience in this situation, creating a persecuting environment in the justice system. According to field data gathered in this research, the counter-terrorism regime in Sri Lanka has prompted the emergence of a range of factors that suppress the voice of the defendant by creating an unlevel playing field within the justice system. Such factors include: (a) indefinite detention arrangements combined with extensive delays in serving indictments and scheduling hearings, (b) a lack of access to appropriate legal representation, (c) a lack of access to language interpreters, (d) a lack of access to evidence that proves the defendants were under duress while their confession was recorded, and (e) unfair discretionary powers exercised by the police and the prosecution. The impact and extent of these factors could be better understood by revisiting the suspect/ defendant’s ‘journey’ through the justice system. When the police conclude their investigations after recording a confession, the Tiger suspect is produced before a magistrate, so that the police can seek a detention order under the PTA or Emergency Regulations. This order allows the indefinite detainment of the suspect in remand until the conclusion of the trial – court orders that are known as ‘no-date orders’ among Tamil prisoners. Indeed, these ‘no-date’ orders have no expiry date; if the prosecutor fails to file or delays filing an indictment, the waiting period for a Tiger suspect to face trial could be extended up to several years. Further, the duration of confession-based trials could be up to three years, with extended adjournments due to the high case load of the court, absenteeism of the prosecution’s witnesses who are working in the war zone or simply because the defence lawyers fail to turn up at the court hearing. Nallaratnam was arrested on 16 July 1993 and by the time he was convicted on 4 October 1995, he had already spent more than two years in detention. Similarly, 37 McBarnet, Conviction Law, p. 4. 38 Hanlon and Dabhoiwala, The Other Lanka, pp. 5-6.

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Ramani was indicted in the High Court two years after her arrest, during which time she was in detention. As a result of such delays in the system, defendants are effectively punished for an offence for which their guilt is yet to be determined by the High Court. When justice has been delayed for terrorist suspects in Sri Lanka, on no occasion have any acquitted suspects been compensated by the High Court for their time spent in remand.39 It is the norm within many justice systems that the facilities for a prosecution’s case are publicly funded, while the costs of a defence must be covered by private citizens. McBarnet asserts that the justice system itself creates inequality insofar as affluent defendants can ‘buy the case’ while those less fortunate cannot.40 Although the counter-terrorism regime in Sri Lanka was designed to minimise the intervention of defence lawyers during investigations (by removing bail provisions, establishing secret detention centres and rejecting permission for lawyers to meet detainees), the assistance of a skilled legal practitioner is crucial to achieving any favourable outcome for a terrorist suspect in either the High Court or the Supreme Court. 41 This basic right to legal counsel has been denied to many suspects who come from lower socioeconomic groups, as they mostly rely on a handful of charities in Sri Lanka that operate legal aid services, which often lack experienced lawyers. Further, due to the stigma attached to terrorist suspects, some lawyers have refused outright to represent Tamil Tiger suspects. The language barrier is one of the greatest obstacles faced by Tamil suspects and their Tamil-speaking lawyers, and some practices of the courts have reinforced this barrier. As the official language of the courts is Sinhalese (in the areas other than the northern and eastern provinces), Tamil-speaking lawyers and defendants struggle to understand the court proceedings, which are not routinely interpreted due to the unavailability of court interpreters.42 39 The Sri Lankan High Court does not compensate victims for the miscarriage of justice caused by detention under the PTA. On certain occasions the Supreme Court has granted compensation for the miscarriage of justice. 40 McBarnet, Conviction Law, p. 85. 41 Ramani (whose story was presented in the previous chapter) was able to file a fundamental rights case in the Supreme Court, and by doing so she was able to accelerate the trial in the High Court. However, Nallaratnam did not initially have access to a lawyer; therefore, he had to wait for the Attorney-General to file the indictment, delaying the determination of his case. Moreover, Nallaratnam’s lawyer appeared to have performed poorly in the trial, identifying no contradictions in the prosecution’s testimony and not clarifying the inconsistencies in the defence’s testimony. An experienced lawyer, who is able to communicate in the Sinhalese language, could have achieved a more favourable outcome for the defendant. 42 According to the field observations carried out in this research, interpreters are provided only when the Tamil language is used in court (when the defendant is called to give evidence

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Moreover, defendants are not given a Tamil translation of their alleged confessions. Judges, court officers, and lawyers (including the defence lawyers) tend to be satisfied with these arrangements, while the defendant is given no means to comprehend the proceedings which are conducted in a language she/he cannot understand. This practice clearly impairs the fairness of the trial43 by disengaging the defendant from the proceedings; indeed, it could be argued that such a practice constitutes systematic persecution. According to McBarnet, due to a lack of resources the defence is disadvantaged in the pre-trial process, especially when assembling case materials and accessing witnesses.44 Such disadvantageous conditions can be exacerbated within the context of a civil war. One of the trends noted during the field observations is that little evidence is submitted by the defence to disprove the voluntariness of their confession, because of an inability to source external witnesses. As the police interrogation and recording of the confession take place in the secrecy of a detention centre, not accessible to civilians, it is impossible for the defence to call witnesses to prove the ill-treatment of the defendants at the hands of the police. On the other hand, defendants are generally prosecuted in the Colombo High Court, 45 usually far from their hometowns in the northern or eastern parts of the island. Because of this geographical distance and the government’s travel restrictions that are imposed on the people of northern or eastern parts of the island, 46 it is extremely difficult for defendants to gather evidence or receive support from their families and friends. In most cases, the only source of evidence available to the defendant is a medical report that proves they were tortured while in custody, although the credibility of such reports is often questioned at the trial.47 Due to these limitations, the defendant is left with only his own or when a Tamil-speaking lawyer examines or cross-examines a witness). Most Tamil lawyers communicate with the judge and the prosecutor in English. 43 Article 14 (3) (f) of the International Covenant on Civil and Political Rights states that a defendant must be provided with the assistance of an interpreter if s/he cannot understand the language used in court. Also see Weissbrodt, The Right to a Fair Trial, p. 13. 44 McBarnet, Conviction Law, p. 100. 45 Tamil Tigers are mostly prosecuted in the Colombo High Court, which has jurisdiction over the entire island, and which has seven High Court judges who can hear cases separately in their own courtrooms. In addition, Tigers are indicted in a number of other regional High Courts, including in Kandy, Anuradhapura, Trincomalee, Batticaloa and Ampara. 46 It should be noted that these travel restrictions have eased since the end of the war. 47 Many Tiger suspects fail to secure convincing medical reports because the perpetrators used torture techniques that leave little or no marks, or the prosecution argues that torture marks could have been self-inflicted as the judicial medical officers are unable to verify the exact time of the torture (see Chapter 3).

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testimony to disprove the involuntariness of his confession. For example, in Nallaratnam the defendant’s testimony was assessed against his written confession which was corroborated by two police witnesses, while the medical report was only partially corroborated by the defendant’s own testimony. Inequalities within the criminal justice system can be observed not only in the aforementioned processes, but also in the discretionary actions of the police and the prosecuting officers. The discretion of public officers plays an important role when explicit provisions are absent 48; nonetheless, these discretionary powers are susceptible to being corrupted and abused. According to McConville et al., police use their discretion to an enormous degree in the process of constructing a case against a suspect, particularly during the pre-trial negotiation phase, such as in persuading suspects to become the prosecutor’s witnesses, offering bail or lesser charges, or partaking in forms of ‘dealing’, ‘trading’ and ‘bargaining’. 49 With the immunity and excessive powers granted by the counter-terrorism laws in Sri Lanka, the police assume a crucial position in applying extreme discretionary powers to determine who they will prosecute and who they will release. In particular (as discussed in the previous chapter), because the police rely heavily on the suspect population for intelligence, they must constantly apply their discretion in cutting deals with existing detainees in order to arrest new suspects. Nallaratnam affirmed this: ‘The officers simply want information […] Three of the men who were arrested with me gave information to the police and became their allies. They asked me to do the same. I refused. Then the police made two of them [those who became allies of the police] to assault me.’ The Attorney-General in Sri Lanka also exercises a great deal of discretion when constructing cases against suspects and prosecuting them, and these actions reveal bias and prejudicial conduct. For example, the AttorneyGeneral has shown little interest in prosecuting high-ranking officers against whom allegations of torture have been raised; neither did he take any action to protect the witnesses in such cases.50 While the Attorney-General has delayed the serving of indictments to Tamil Tiger suspects on many occasions, he has ensured speedy trials against non-terrorist suspects accused of kidnapping or murder. The expedition of these trials was justified on the grounds of ‘public interest’, yet some defence lawyers for Tiger suspects believe that the Attorney-General has purposefully delayed the trials of 48 Douzinas and Gearey, Critical Jurisprudence, p. 6. 49 McConville et al., The Case for the Prosecution, pp. 15, 61. 50 Hanlon and Dabhoiwala, The Other Lanka, p. 70.

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Tigers to increase their terms of detention.51 Further, the Attorney-General’s actions have been criticised for the existence of various inconsistencies in his official duties. For example, in some cases, while the content of two confessions is almost identical, the charges for these crimes may be very different: one suspect is served with only one indictment with one or two counts, while another is indicted with numerous counts by various indictments at different courts.52 More problematic is the bias of the Attorney-General as manifest in his role as prosecutor, who is supposed to be independent of the police and politics. The Attorney-General in Sri Lanka has attracted much criticism in the past because of his department’s close relationship with both the police and politicians, and his decisions have been viewed as inherently political.53 When these allegations were raised, the officers of the Attorney-General’s Department responded by saying that the department applies certain assessment criteria, based on the credibility of evidence, when determining whether to prosecute a Tiger suspect.54 In practice, however, this does not appear to be the case. The only piece of evidence that the police produce against most of the Tiger suspects is a confession; however, the AttorneyGeneral has continued the practice of indicting suspects without questioning the validity of mass-produced confessions.55 Affirming these accusations of bias, several defence lawyers have claimed that police officers have been briefed, if not trained, by the prosecuting lawyers of the Attorney-General’s Department on how to record better confessions.56 Attorney-General C.R. de 51 Field interviews with defence lawyers and lawyers of the Attorney-General’s Department (June 2007). As most Tiger suspects have successfully challenged their alleged confessions in court and secured an acquittal, perhaps the prosecutors come to believe that the only way to punish them is to detain them for longer by delaying prosecution. This aligns with practices seen in the British anti-Thuggee campaign, which had similar prosecuting arrangements, and the British colonial administration continued to rely on confessionary statements to extend the detention period for suspects. See Lloyd, ‘Thuggee, marginality and the state effect in colonial India’, p. 214. 52 This was noted in the comparative studies of the sample confessions. The defence lawyers affirmed this inconsistency in indictments. 53 Justice P.N. Bhagwati, representing the International Independent Group of Eminent Persons who visited Sri Lanka, suggested that the Attorney-General’s Department was partial in its conduct and faced a ‘conflict of interest’. 54 Field interviews with lawyers from the Attorney-General’s Department (June 2007). 55 Although in Victor Ivon v Sarath N Silva Attorney General and Another the Supreme Court held that the Attorney-General’s power to make a decision to prosecute is not a discretionary power, the practice of indicting suspects based on discretion alone continues. See Dias, ‘The role of the Attorney General’, p. 325. 56 The use of a template for confessionary statements, discussed in Chapter 3, may be one result of such training.

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Silva once admitted: ‘on certain occasions, the Attorney-General provides legal advice to criminal investigators’.57 Observing this alliance between the police and prosecutors, Bronitt notes: ‘Police and prosecutors are not simply actors governed or constrained by formal legal rules. As empirical research has revealed, the law – whether based in statute or judicial decisions – operates as a resource – through which police and prosecutors pursue various institutional ends’.58 This collaborative exercise between the police and prosecution lawyers, combined with the excessive use of discretionary powers, can damage one of the fundamental principals of criminal law: the presumption of innocence of the defendant. According to the view expressed by the United Nations Human Rights Committee in Dole Chadee et al v Trinidad and Tobago,59 the presumption of innocence implies a right to be treated as innocent, and this imposes a duty on all public authorities to refrain from prejudging the outcome of a trial. In contrast, evidence has emerged indicating that public officers, including the police, prosecutors and even judges, often prejudge the outcomes of trials. There have been incidents of judges using abusive or threatening language to silence defence lawyers who are not willing to cooperate with the police, and only a few lawyers have objected to such unfair treatment and humiliation.60 Sellapulle stated, ‘when I was produced before the court, even before the trial began, the judge said, “I will give you 30 years conviction”’.61 A similar experience was mentioned by another suspect, Prem.62 The stigma associated with terrorism offences, combined with other prejudices such as racism, may encourage public officers to make such unacceptable remarks, and tolerate the excessive use of discretionary powers against defendants. While such prejudices, persecuting practices or prejudgements continue to exist in the Sri Lankan justice system, only a few terrorist suspect can expect a fair judgement based on a fair assessments of the facts.

57 ‘AG accuses IIGEP of improper conduct’. 58 Bronitt, ‘Law enforcement immunities’, p. 225. 59 See Dole Chadee et al v Trinidad and Tobago, Communication No 813/1998, U.N. Doc. CCPR/C/63/D/813/1998, cited by Weissbrodt, The Right to a Fair Trial, p. 114. 60 Hanlon and Dabhoiwala, The Other Lanka, p. 35. 61 See Chapter 1. Interviews (June 2007): Sri Lankan judges are known for making these types of comments in the open court, disregarding court etiquette. This specific remark was corroborated by one of the lawyers who represented the accused in this case. 62 See Chapter 2.

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The formula of justice In a court hearing, justice is delivered by assessing the ‘admissible’ facts in a procedural framework which can be understood as a formula. As discussed in Chapter 1, with the declaration of the state of emergency and the passing of counter-terrorism laws in Sri Lanka, the state altered the ordinary formula of justice. When answering the question, ‘What are the possibilities and limits of a fair hearing for Tigers from the judiciary in Sri Lanka?’, we need to analyse two elements in relation to justice: the fairness of the formula itself and the fairness of the process of applying the formula (whether the facts of the case have been correctly assessed against the formula). Here it is important to distinguish between the formula of justice under ordinary circumstances and the formula under the state of emergency. The highly cautious attitude of the Sri Lankan judiciary towards confessionary evidence under ordinary law was evident in Queen v Gnanaseeha Thero,63 where the judges of the Court of Appeal observed: In any event, the risk is great that the police will accomplish behind their closed doors precisely what the demands of our legal order forbid: make a suspect the unwilling collaborator in establishing his guilt. This they may accomplish not only with ropes and rubber hose, not only by relay questioning persistently, insistently subjugating a tired mind, but by subtler devices.

This view is reflected in the law of criminal procedure, which prohibits the use of statements recorded by a police officer (as a substantive piece of evidence) in a criminal trial.64 Under general procedural law, a confession may be marked as evidence only if it is proven to have been given to a magistrate voluntarily by the suspect, and the burden is on the prosecution65 to satisfy the court that the confession was not given under the influence of any inducement, threat or promise.66 The most important 63 [1968] 73 NLR 154. 64 Section 110 (3) of the Criminal Procedure Code. As explained in Chapter 1, this is one of the significant differences between British law and Sri Lankan law. British criminal law allows confessions recorded by the police as a substantive piece of evidence. 65 See Weerasamy, where it was held that the burden lay on the prosecution to establish the relevancy of a confession by leading some evidence to show that it was made voluntarily and when the prosecution establishes the voluntariness beyond reasonable doubt, the confession is seen as an absolutely truthful piece of evidence in the eyes of the judiciary ([1941] 43 NLR 152). 66 Section 24 of the Evidence Ordinance and Perera v Inspector of Police, Galagedara ([1955] 57 NLR132).

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aspect of the substantive law in relation to the confession is the corpus delicti rule, which stipulates that a defendant cannot be convicted on the basis of his/her own confession alone, and that there must be corroboration or independent evidence to prove that the crime actually occurred.67 The formula under general criminal law can be summarised as shown in Figure 5.2. Figure 5.2 

No inducement, threat or promise

Voir dire inquiry

Proved beyond reasonable doubt by prosecution

Admissible to mark as substantive piece of evidence

Corpus delicti:: independent evidence to prove content of confession

Proved beyond reasonable doubt by prosecution

Guilty

Voluntary confession given to magistrate

If the confession is accepted at the voir dire inquiry

The safeguards offered to a defendant in general criminal law were significantly averted by section 16 (1) of the PTA, which allowed the use of a voluntary confession recorded by a senior police officer of or above the rank of ASP as a substantive piece of evidence. Further, section 16 (2) of the PTA transfers the burden of proof onto the suspect, who must prove that the confession was not given voluntarily. This means that the suspect cannot simply exercise his/her right to silence and wait for the prosecution to prove the case beyond reasonable doubt; rather, the suspect must adduce evidence to prove that the confession was given involuntarily. The burden of proof placed on the suspect, however, remains in a lower standard – ‘balance of probability’.68 As only the confessions given to police officers by volunteer67 Proof of the commission of a crime can be divided into three elements that must be proved beyond reasonable doubt: (a) the injury, such as the death in a case of murder; (b) the fact that the injury was the result of a criminal, rather than a natural or accidental, cause; and (c) the identification of the defendant as the perpetrator of the crime. The first two of these elements constitute the corpus delicti or body of the crime, which is proved when the prosecution has shown that a crime has been committed by someone as, for example, where there is evidence that a body has been found. See University of Pennsylvania, ‘Proof of the corpus delicti aliunde’, p. 638. Also see Solan and Tiersma, Speaking of Crime, p. 91. 68 Section 16 (2) of the PTA. It is easier for a party to prove a fact according to the standards of ‘balance of probability’, compared to the standards of ‘beyond reasonable doubt’. See Cooma­ raswamy, The Law of Evidence, p. 272.

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ing suspects are admissible under these counter-terrorism laws, section 24 of the Evidence Ordinance, which prohibits the admission of confessions given under any inducement, threat or promise, continued to apply in the case of Tamil Tiger suspects. Thus, the altered formula under the PTA can be summarised as shown in Figure 5.3. Figure 5.3

Proved beyond reasonable doubt by prosecution

Admissible to mark as substantive piece of evidence

Voir dire inquiry

Corpus delicti: independent evidence to prove the content of the confession

If the confession is accepted at the inquiry

Oppression proved on balance of probability by the defendant

Not admissible to mark as substantive piece of evidence

No independent evidence to prove the content of confession

Not Guilty

Oppression (inducement, threat or promise)

Proved beyond reasonable doubt by prosecution

Guilty

Voluntary confession given to a police officer above the rank of ASP, or a magistrate

It is clear that, by altering this formula, the notion of neutrality in the justice system has been radically changed, because a confession recorded by the police is made admissible and the terrorist defendant has to prove the involuntariness of the confession.69 Further, based on the precedents set by the British courts, it could be argued that Sri Lanka’s counter-terrorism laws have effectively removed the presumption of innocence in relation to terrorist suspects.70 Murphy submits: ‘there is a potential for the rights of the defendant to be eroded by means of statutory definition of offences’ as such definitions ‘recast’ the elements of an ‘offence’ (which should be proved by the prosecution) as a ‘defence’ (which now has to be disproved by the

69 It should be noted that according to case law (under ordinary law, not counter-terrorism law), as in Vivekanandan v Selvaratnam ([1977] 79 NLR 337), the defendant has been asked to prove involuntariness on the standards of balance of probability; however, it is not a statutory burden of proof enacted by a law of the legislator, which has a compulsory burden to prove an element embedded into the offence. 70 Ganeshalingam argues: ‘Placing the burden of proof on the accused not on the prosecution, amounts to a “presumption of guilt”’. See Ganeshalingam, ‘Impact of the PTA’, p. 52.

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defendant).71 British law took a significant turn in relation to transferring the burden of proof onto the defendant in Lambert,72 where the defendant appealed against the court imposing the burden on him to disprove the possession of a drug of which he claimed he was unaware. In Lambert, the House of Lords held that the existence of the legal burden of proof borne by the defendant violates the presumption of innocence. Lord Steyn noted: ‘It is a fact that the legislature has frequently and in an arbitrary and indiscriminate manner made inroads on the basic presumption of innocence’.73 Although it is now clear under British common law due to the decision in Lambert that the imposition of this ‘reverse burden of proof’ is prima facie incompatible with the presumption of innocence,74 these changes may never have any impact on the Sri Lankan justice system because transferring the burden of proof onto the defendant does not violate the fundamental rights guaranteed by the Constitution of Sri Lanka. Article 13 (5) of the Constitution provides: ‘every person shall be presumed innocent until he is proved guilty’, yet adds that ‘the burden of proving particular facts may, by law, be placed on a defendant person’. The golden rule of the law of crime is that the prosecution must prove the defendant’s guilt beyond reasonable doubt; and the onus is on the prosecution to prove the voluntariness of the confession.75 No provision in the counter-terrorism laws in Sri Lanka has changed this rule, despite the fact that the defendant is required to disprove the voluntariness of his/her confession. The next phase of this discussion is to enquire whether the formula was accurately applied at the trials by examining whether the prosecution proved voluntariness beyond reasonable doubt in Nallaratnam. In examining Nallaratnam, it is important to study the facts submitted by both the prosecution and the defence at the trial. The defence lawyer 71 Murphy, Murphy on Evidence, p. 93. Here Murphy criticises the new laws that force the suspect to submit his/her defence by proving the elements of oppression such as threat or torture by the police. What Murphy here intends to explain is that knowledge of the crime is part of the offence, but by amending the laws the state can separate the offence and pass the burden of proof to the defendant to disprove part of the offence. 72 Lambert ([2002] 2 AC 545 at 569). 73 Ibid., p. 569. 74 Murphy, Murphy on Evidence, pp. 91-93. 75 According to Murphy, the evidential burden of proof is discharged when a prima facie case is established by the prosecution and the legal burden of proof continues to exist until the judgement is delivered. According to Coomaraswamy, however, this distinction between the legal and evidential burden of proof in British law is of little importance in Sri Lankan law, where the burden of proof refers to the legal burden. See Murphy, Murphy on Evidence, p. 77; and Coomaraswamy, The Law of Evidence, p. 249.

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did not appear to be adequately prepared, and his cross-examination did not seek to adduce the contradictions between the accounts of the two witnesses of the prosecution. Instead, he merely made suggestions that his client had been tortured while in custody, and he failed to establish all but one textual irregularity within the confession.76 It is evident from the court transcripts that the court interpreter may have had problems with clearly interpreting the oral testimonies of the witnesses. Moreover, the Tamil defence lawyer seemed to have difficulty understanding the examination in chief conducted in the Sinhalese language without a Tamil interpreter.77 In contrast, the prosecutor executed a well-structured plan when he examined his witnesses. He also discredited Nallaratnam’s testimony when he crossexamined him in the witness box. One way of assessing the efforts of each counsel during the trial is to compare the number of questions they put to the witnesses. While the prosecution put forward 88 questions to the ASP, the defence only asked 59 questions in the cross-examination; and whereas 48 questions were put to the interpreter/typist by the prosecution, the defence used only 17 questions to cross-examine. The defence relied primarily on two arguments to challenge the voluntariness of the confession. The defence counsel submitted a medical report from the judicial medical officer who examined the defendant. The report attested to several torture marks on the body of the defendant, thus corroborating Nallaratnam’s oral testimony of having been tortured while in custody. In the cross-examination, the prosecution asked the defendant why he did not complain about the torture to the magistrate earlier, before he was remanded. The defendant replied that he was afraid that he would be tortured again, stating that ‘those who made such complaints earlier were brought to the camp [detention venue] and beaten again. So I did not say [complain] that [due to] fear’. The defence lawyer then noted a flaw in the process of recording the confession: the same officer, Constable Hasim, who initially interrogated the defendant and recorded his first statement78 was called to interpret and type the confession. The defence argued that 76 In his written submission, the defence lawyer argued: ‘the first few lines in the alleged confession could not have voluntarily and spontaneously come from the defendant who is illiterate’. By this he was referring to the first half of the free confessionary narratives, which starts: ‘I am the person who has been described above…’. 77 According to the transcripts, an interpreter was called only when the defence lawyer conducted the cross-examination in English and when the defendant gave evidence in Tamil. 78 The first statement is a statement prepared by a police officer soon after the arrest and interrogation of a suspect. It cannot be brought as a substantive piece of evidence against the defendant.

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this posed a threat to the defendant. The defence’s submission was that the confession was fabricated by taking text from the first statement, and that the defendant was produced before the ASP only to place his thumb print on a prewritten confession. In his written submission, the defence lawyer argued: ‘the first few lines in the alleged confession could not have voluntarily and spontaneously come from the defendant who is illiterate’.79 The High Court judge was convinced by the accounts offered by the prosecution’s witnesses. She relied on section 80 of the Evidence Ordinance, which provides that a statement taken by an officer authorised by law is presumed to be genuine. When the ASP was questioned as to why he did not summon a different officer to interpret and type the confession, he replied: ‘Your Honour, in stations where we serve in Batticaloa we do not have any facilities. We do not have even officers who can speak [the] Tamil language. That is why P.C. Hasim had obtained a statement [the first statement, not the confession] regarding the suspect. When I was serving in Batticaloa at no time even a typewriter was received for service. We carried out that service by obtaining even a typewriter from the army’.80 The judge was of the opinion that Nallaratnam’s claims of torture were not corroborated by the medical report, and gave three reasons for this judgement. Passing the judgement of the voir dire inquiry, the judge questioned why some of the torture marks that the defendant claimed to have on his hands were not reported in the medical report. She added: ‘however, it is also decided that the injury scars recently visible on the defendant’s body are the remains of those injuries inflicted before or after this incident. Therefore this medical report is an equivocal evidence’.81 The judge was also sceptical about the reasons why no allegations of torture were made earlier. She said, ‘it is clear to me that at the very first opportunity he [the defendant] would have informed an official if such an assault as described by him in this court had taken place and that he could have obtained protection. That is the behaviour that can be expected from a normal human being […] [I]t is my conclusion that, the claim that the confession was made due to some 79 The defence lawyer was referring to the first segment of the confession presented earlier in this chapter, which starts: ‘I am the person who has been described above […] in good physical and mental conditions in order to give a statement’ (see the Appendix for more detail). 80 Copied from the court proceedings translated by the defence lawyer (The Republic of Sri Lanka v Nallaratnam Singarasa; HC Case No 6825/94; trial date 02/06/1995). 81 Copied from the court proceedings translated by the defence lawyer (The Republic of Sri Lanka v Nallaratnam Singarasa; HC Case No 6825/94; trial date 02/06/1995). The judge made these remarks because the medical report did not provide an exact time of when these injuries could have been inflicted (see Chapter 4).

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threats, inducements and assaults that had taken place has no foundation’. Two instances of inconsistency in the defendant’s testimony also had an extremely negative impact on the case of the defence. The judge noted these inconsistencies: ‘defendant stated earlier in his evidence that when his statement was typed […] he was not in the room where it was typed, then he has contradicted in the cross-examination saying that the statement was recorded in front of him’.82 Offering the above arguments, on 2 June 1995 the High Court judge concluded the voir dire inquiry, accepting the confession as an admissible piece of evidence and ruling that Nallaratnam gave the confession voluntarily. Passing her judgement, she added: ‘there is no admitted and concrete evidence that a threat, inducement or promise was present at the time this confession was made’.83 Does this decision reflect an accurate application of the formula outlined earlier? Did the prosecution prove the voluntariness of the confession beyond reasonable doubt? Did the defence fail to prove the involuntariness according to the standards of the balance of probability? This judgement can be questioned based on a number of reasons. The judge demonstrated some preference for the prosecution’s version of the facts, and disproportionately questioned the account provided by the defence. Further, the judge seemed to expect the prosecution to prove guilt by discharging a lesser burden of proof, while demanding that the defence discharge a higher degree of burden of proof (more than is required by law).84 There is no single universally accepted def inition of the concept of reasonable doubt.85 In Miller v Minister of Pensions, Lord Denning stated, ‘It [beyond reasonable doubt] need not reach certainty, but must carry a high degree of probability’.86 He added that proof beyond reasonable doubt does not mean ‘proof beyond reasonable shadow of a doubt’. Coomaraswamy asserts: ‘A conviction can be justified only when the court is satisfied on 82 The court transcripts suggest that there was a misunderstanding in regards to whether the complete document (the confession) was typed in front of the defendant, which was never clarified at any stage of the trial. The author’s opinion is that the defendant stated that he was present when his confession was typed by the constable, but that he was later taken to the ASP to provide his signature. The judge appeared to have misinterpreted these two separate occasions as one incident, and misjudged that there was a contradiction in the defendant’s testimony. The defence lawyer failed to highlight and clarify this. 83 Copied from the court proceedings translated by the defence lawyer (The Republic of Sri Lanka v Nallaratnam Singarasa; HC Case No 6825/94; trial date 02/06/1995). 84 Dixon argues that the theory of burden of proof should theoretically benefit the defendant not the prosecution: Dixon and Travis, Interrogating Images, p. 9. 85 Coomaraswamy, The Law of Evidence, p. 306. 86 (1948) L.J.R. 203.

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reliable evidence that the prosecution’s story must be true, and not that it may be true’. He adds that it is not enough for the trial judge to convict a defendant by merely expressing a preference for the prosecution’s version of events.87 In Nallaratnam, the judge seemed to have shown a preference for the prosecution’s account over the defence’s account, and the judge was of the opinion that the police officers’ story was consistent, as it was not ‘rebutted’ by the defence. She stated: ‘for a valid reason, the defendant has been produced before the ASP to record the confession […] If there was a necessity to record a false statement as expressed by the defendant, Hasim [the typist/interpreter] and other officers who kept the defendant under arrest, if present at the time, had the complete liberty to record a false statement without doing so in the presence of the ASP’.88 Here the judge has ignored the fact that a confession recorded by Hasim himself would not be admissible under the PTA because he was an officer below the rank of an ASP. She adds: ‘witness [the defendant] also testifying that although an assault had taken place in the camp [detention centre] did not go on to make any reference to threat, duress or inducement under which the defendant was brought before the ASP’.89 In making this observation the judge reveals her complete trust in the police officer’s integrity and her inherent distrust of the defendant, despite the claims made by the defendant that he was tortured. Further, the failure of the defence lawyer to rebut the prosecution’s account is in itself not adequate rationale to discharge the burden of the prosecution. According to Murphy, a prima facie case is established against a defendant when there is enough evidence to ‘entitle’ but not to ‘compel’ the court to find in favour of the prosecution, if there were to be no further evidence given.90 Only if such evidence is left ‘uncontradicted’ or ‘unexplained’ can the prosecution’s account be accepted as proof.91 Arguably the defendant in Nallaratnam submitted adequate explanations to contradict the prosecution’s version of events, by giving evidence from the witness box that was partly supported by the medical report; hence, the prosecution was no longer entitled to a favourable finding. According to the transcripts of the trial, although Nallaratnam disproved the voluntariness of his confession based on the standard of the balance of probability, the judge demanded a higher standard of proof from the 87 Perera v Naganathan (1964) 66 NLR 438 in Coomaraswamy, The Law of Evidence, p. 305. 88 The Republic of Sri Lanka v Nallaratnam Singarasa; HC Case No 6825/94; trial date 02/06/1995. 89 Ibid. 90 Murphy, Murphy on Evidence, p. 77. 91 Jayasena v R ([1970] AC 618 at 624).

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defence, thereby contradicting the existing law of evidence. In Vivekanandan v Selvaratnam,92 Justice Malcolm Perera explained the standard of proof that the defence needs to discharge when seeking to disprove the voluntariness of a confession. He noted that what the court has to decide is ‘not whether it has been proved that there was a threat, inducement or promise, but whether it appears to the Court that such threat, inducement or promise was present’. The judge added: I am inclined to view that the word ‘appears’ [in section 24 of the Evidence Ordinance] indicates a lesser degree of probability […] I should rather think that the legislature has decidedly used the word ‘appears’ to guarantee to the defendant persons in criminal proceedings, absolute fairness […] Thus section 24 does not require positive proof of improper inducement, threat or promise to justify the rejection of a confession. If the Court after proper examination and careful analysis of evidence and the circumstances of the given case, comes to the view that there appears to have been a threat, inducement or promise offered, though this is not strictly proved, then the court must refuse to receive in evidence the confession.93

In contrast to Justice Perera’s view, the High Court judge in Nallaratnam rejected the torture claims of the defence because they were not fully corroborated by the medical report – only some of the marks were corroborated. The judge also rejected the defence’s explanation of why no complaint of torture had previously been made to a magistrate: that the defendant feared further torture at the hands of the police if he were to complain. Arguably the medical report’s partial corroboration of the claims of torture, which were supported by the defendant’s own accounts, should have been adequate to prove the involuntariness of his confession on the basis of the standard of balance of probability. The evidence brought forward by the defence made it ‘appear’ to the court that the defendant had faced certain threats while in police custody. 92 Vivekanandan v Selvaratnam ([1977] 79 NLR 337). It should be noted that this is not a case in which the confession was recorded under the PTA; however, the concept discussed in this case in terms of the burden of proof applies to a PTA matter. Under the ordinary law the defendant can remain silent in the court without disproving voluntariness. However, the burden of proof imposed on the defendant by the PTA is a statutory burden, hence it is compulsory for the defendant to adduce evidence to disprove voluntariness. The judgement in Vivekanandan is applicable to confessions recorded under the PTA, as many defence lawyers have argued. 93 Vivekanandan v Selvaratnam ([1977] 79 NLR 337). The term ‘appears’ in the Evidence Ordinance indicates a lesser degree of burden, i.e. the ‘balance of probability’.

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As permitted by the trial judge, the prosecution marked certain sections of the confession which were submitted to prove Nallaratnam’s guilt. On 4 October 1995 the judge convicted Nallaratnam on five counts under the PTA and sentenced him to a total of 40 years’ rigorous imprisonment.94 However, there was a significant flaw in this judgement which was later overlooked by all the appellate courts: the prosecution had not adduced independent evidence to prove the content of the confession as demanded by the corpus delicti rule. This rule clearly states that a defendant cannot be convicted on the basis of his confession alone, and that there must be corroboration or independent evidence to prove that the crime occurred.95 However, the effectiveness of the corpus delicti rule is limited by the fact that it usually requires evidence that proves only that a crime was committed, not that the defendant was involved in that crime.96 It should be noted that the precedent set in Nallaratnam was later changed by a subsequent decision of the Supreme Court, in Nagamany Theivendran, in Sri Lanka in October 2002.97 In this case, the court held that the prosecution must submit independent evidence in order to corroborate the content of confessions recorded under the PTA. Nallaratnam unsuccessfully appealed the court’s decision on the ground that the trial judge made an error by: (a) ruling that the confession satisfied the test of voluntariness (in section 24 of Evidence Ordinance); and (b) admitting a confession that was not corroborated by evidence emanating from an independent source (effectively claiming that the corpus delicti rule was not followed).98 In its decision, the Court of Appeal affirmed the verdict of the High Court, subjected to a reduction of the sentence to 35 years. The appeal was rejected largely because the defence had not contested many of the facts stated in the confession by identifying contradictions in the testimonies given by the state’s witnesses (the police officers). The Court of Appeal’s opinion was that the defence conceded the facts that the defendant was taken to the ASP’s office, the interpreter accurately interpreted the conversation and only three of them were present at the time the conversation was recorded. The court held that the mere presence 94 The Republic of Sri Lanka v Nallaratnam Singarasa; HC Case No 6825/94; trial date 04/10/1995. 95 State v Jones, 6P.3d 323 [Ariz. Ct. App. 2000], cited in Solan and Tiersma, Speaking of Crime, p. 91. 96 Ibid., p. 91. 97 Unreported case punished on TamilNet: Here it was held that a confession itself is not adequate to convict a defendant and external evidence is required to corroborate the content of a confession. See ‘Landmark SC judgment in PTA case’. 98 Nallaratnam Singarasa v Attorney-General (CA 208/95: judgement delivered on 06/07/1999).

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of Hasim, who had recorded the ‘first statement’, did not pose a threat to the defendant because no evidence was adduced by the defence to prove that this was so. The judge stated: In determining the competing versions whether the confession in question was made voluntarily or not, it is of paramount importance to assess the testimonial trustworthiness and credibility of the persons making the assertions and denials in respect of the fact […] [but] The defendant at the voir dire has set out two conflicting and inconsistent positions.99

One of the key issues in relation to the Court of Appeal’s decision is that the corpus delicti rule was discarded, while the court chose to focus only on the credibility of the prosecution’s testimony. The judges mentioned: ‘The general principle in the Law of Evidence is that the evidence of a single witness if convincing, overwhelming and cogent is suff icient to establish any fact […] What is paramount is the cogency of evidence and not the number of witnesses that are called in support of the fact’. Further, the Court of Appeal paid very little attention to the standards of proof that both the prosecution and the defence were required to discharge. The attitude of the High Court judge, which cast serious doubt on the trustworthiness of the defendant’s testimony, was echoed by the Court of Appeal: The key inconsistency being the defendant saying that he was there during the entire time of recording and then denying it to say he was there only for part of it […] Is it because of the realisation of the guilt and fear for the truth that he did utter subsequently an inconsistent version which was untrue? Did he realise that by the manifestation of the truth he would be sealing his fate? […] [This is] to be answered in the affirmative […] It is manifest that the defendant has failed to discharge the burden cast on him to establish that the confession recorded appears to have been caused by threat, inducement or promise.100 99 Ibid. The two inconsistencies were as follows: that some of the torture marks were not recorded in the medical report; and that the defendant supposedly contradicted himself by first stating that the complete confession was recorded in front of the ASP and the interpreter/ typist, and then later claiming that he was taken to the ASP only to sign the confession, which had been prepared earlier. The author’s observation is that this was a misinterpretation of the defence’s testimony. 100 Nallaratnam Singarasa v Attorney-General (CA 208/95: judgement delivered on 06/07/1999).

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The Court of Appeal also disregarded the defendant’s submission that he was tortured, because certain scars on his hands that he claimed were the result of torture were not noted in the medical report. The most questionable aspect of the court’s decision was its choice of test to adopt to assess the credibility of the confession as evidence. The Court of Appeal judges noted that the questions to be asked when assessing a confession as evidence concern whether a confession is made voluntarily, and whether a confession is ‘true and trustworthy’.101 The judges added that the credibility of evidence was determined in this case by referring to the test of the ‘means of knowledge’, which assesses whether the alleged confessor would possess sufficient knowledge to narrate the content of a confession. One of the key reasons that the judges gave for why the defence failed this test was that the ‘defendant was not called to give evidence by the defence to deny his knowledge of the content’.102 The Court of Appeal appears to have ignored the defence’s written submission that it was not possible that the first part of the confession was uttered by an illiterate person like the defendant.103 Further, this decision indicates that it is not the burden of the prosecution to prove that the defendant could have had sufficient knowledge to narrate the confession, but that the burden is on the defence to prove that the defendant did not possess such knowledge. It appears that the Court of Appeal possibly made an error in law by: (a) choosing to adopt the test of the ‘means of knowledge’ as the criteria of its determination, because the defendant’s statutory burden is limited to disproving the voluntariness and does not extend to disproving the content of the confession; (b) not demanding independent evidence from the prosecution to prove the crimes in the confession (and thereby applying the corpus delicti rule); and (c) ignoring the standards of the burden of proof to be discharged by either party, instead expecting a higher degree of proof from the defendant on the threat posed by the police, which was proved by medical evidence. Nallaratnam sought leave from the Supreme Court to appeal against the decision of the Court of Appeal, but the Supreme Court refused to grant 101 Confessions are judged in most criminal justice systems using the ‘triple test’ based on three questions: whether the confession is voluntary, whether it is legal and whether it is corroborated. See Laudan, Truth, Error, and Criminal Law, p. 172. 102 Nallaratnam Singarasa v Attorney-General (CA 208/95: judgement delivered on 06/07/1999). 103 In his written submission, the defence lawyer argued: ‘the first few lines in the alleged confession could not have voluntarily and spontaneously come from the defendant who is illiterate’. By this he referred to the first half of the free confessionary narratives, which starts: ‘I am the person who has been described above…’.

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leave for the appeal on its decision on 28 January 2000.104 The remarks of the Court of Appeal seem to align with the opinion of the trial court judge, who showed a degree of preference for the police witnesses’ account over the defendant’s story. What is most incomprehensible in this chain of decisions is the court’s apparent lack of concern over the potential for defendants to face oppressive conditions while in police custody or for the use of force by police to extract incriminating evidence. The Court of Appeal noted: ‘the Law of Evidence in its wisdom admits admissions and confessions against its maker because there is an inherent guarantee of testimonial trustworthiness and truth’.105 It is clear that in Nallaratnam, the court took a complete U-turn in rejecting the progressive views seen in Queen v Gnanaseeha Thero106 (in which the confession was rejected due to the ‘risk’ of accepting statements recorded by the police). It appears as if the Court of Appeal actively sought arguments to justify the High Court’s decision rather than independently and impartially reviewing the decision. Nearly eight years after Nallaratnam’s arrest, exhausting all domestic avenues of justice, on 21 November 2001 Nallaratnam submitted a communication to the United Nation’s Committee on Human Rights. Three years later, at its 81st session (held on 5-30 July 2004), the committee considered the communication to inform its views under article 5, paragraph 4 of the Optional Protocol of the International Covenant on Civil and Political Rights107 (ICCPR). Among other claims, Nallaratnam submitted that his civil and political rights had been violated by the state by: (a) his arbitrary arrest, detention, and torture; (b) shifting the burden of proof onto him to prove the involuntariness of his confession; and (c) being convicted for the offences solely on confessionary evidence.108 Nallaratnam specifically argued that his right to a fair trial had been violated because the courts failed to consider certain issues such as the absence of a counsel, the absence of independent language interpreters and the lack of other safeguards to ensure voluntariness during the process of recording the confession. He 104 The grounds for the appeal were that the Court of Appeal made errors by holding that: (a) the evidence revealed proof of the conspiracy charges against the defendant, (b) there was no inducement or threat made against the defendant, and (c) the confession itself is sufficient to establish the truth of the content. 105 Nallaratnam Singarasa v Attorney-General (CA 208/95: judgement delivered on 06/07/1999). 106 ‘In any event, the risk is great that the police will accomplish behind their closed doors precisely what the demands of our legal order forbid’ [1968] 73 NLR 154. 107 Com mu n ic at ion Nu mber 103 3/2 0 01 : Sr i L a n k a 23/0 8/2 0 04 . (CCPR/C/81/D/1033/2001-Jurisprudence). 108 Nallaratnam did not appear before the Committee in Geneva. He submitted his application through his lawyers.

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added that the courts failed to consider exculpatory evidence, gave preference to and relied on the confession, lacked impartiality and the court’s decision was manifestly arbitrary. This communication, and the subsequent finding of the Human Rights Committee, provides us with an excellent opportunity to assess the domestic formula of justice applied in this case against the framework of international human rights law. The Human Rights Committee found that Nallaratnam was denied a fair trial because the court relied solely on the confession obtained in the presence of ‘two investigating officers’; thus, article 14, paragraph 3(f) of the ICCPR was violated (which includes a provision to ensure that independent interpreters are provided for suspects when needed). The committee added that article 14, paragraph 3(g) of the ICCPR was violated (no one shall ‘be compelled to testify against himself or confess guilt’). The committee stated: ‘low level of burden of proof of the author to prove that involuntariness was not complied with by the court because at all stages the courts dismissed the torture and ill-treatment on the basis of inconclusiveness of the medical certificate’.109 The committee also found that the delay in reviewing the trial was a violation of article 14, paragraph 3(c) of the ICCPR (which provides that the suspect should be given a trial without undue delay). The committee ruled that the state is under an obligation to provide an effective remedy for the violation of the author’s human rights, including release, retrial or compensation. The Supreme Court declined to implement the recommendations on the grounds that the committee did not have jurisdiction over domestic matters in Sri Lanka.110 The findings of the Human Rights Committee highlight two important issues about the formula of justice that has been applied against terrorist suspects in the Sri Lankan context. First, according to the committee’s findings, the formula itself is an unfair instrument, because the provisions that allowed the recording of confessionary evidence by the police contradict the provisions of international law that prohibit a witness being compelled to testify against him/herself or to confess his/her guilt.111 Second, the formula was wrongfully applied against the defendant Nallaratnam because the 109 Communication Number 1033/2001: Sri Lanka 23/08/2004 (CCPR/C/81/D/1033/​ 2001-Jurisprudence). 110 Nallaratnam Singarasa v Attorney-General (S.C. SrL [LA] No 182/99) judgement date: 15/09/2006 unreported. The reason given for passing this judgement was that although Sri Lanka is a signatory to the Optional Protocol, the findings of the Committee can be binding only if the Sri Lankan Government has enacted specific domestic legislation to enforce the findings of the Committee. However, no such domestic legislation was in place. 111 Article 14, paragraph 3 (g) of the ICCPR.

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court relied solely on the confession and required the defendant to discharge a higher degree of burden of proof. These findings reaffirm the observations which were previously presented in analysing the three domestic decisions of Nallaratnam in the context of the domestic legal framework (that the court made errors in disregarding the precedent in Gnanaseeha Thero by adopting ‘means of knowledge criteria’, disregarding the corpus delicti rule, and disregarding the standards of burden of proof). Moreover, these materials further affirm the findings of the forensic linguistic analysis conducted in Chapter 3. It is therefore apparent that Nallaratnam has been a victim of the miscarriage of justice; and it is noteworthy that there may be many other similar cases of such miscarriage of justice that have passed unnoticed throughout the implementation of the mass prosecution strategy in Sri Lanka. The case of Sellapulle (whose confession contained many irregularities similar to Nallaratnam’s confession as presented in the linguistic analysis in Chapter 3) is another example of a defendant convicted based on his confessionary evidence, and similarly whose claims of torture in custody were disregarded by the court. However, it should be noted that both Nallaratnam and Sellapulle represent the minority of Tiger suspects, while the majority have been acquitted, possibly because the court has correctly applied the law. Nonetheless, Nallaratnam points to one critical question: What led the three consecutive court decisions to conform with the draconian counter-terrorism laws and the harsh conduct of the officers responsible for implementing these laws? Before concluding this chapter, it is important to discuss the factors that may have tainted the course of justice, by studying the role played by the judges in determining the truthfulness of the confessions.

(Pre)judgement of the terrorist by the judiciary Evidently, the legislative arm of the state expects the judiciary to play an important role in the war against terrorism. Thus, the judiciary has become a critical stakeholder in this war, sometimes assisting the state to reinforce and justify its draconian counter-terrorism laws, while at other times defending the rights of terrorist suspects. Whatever may be the reasons that have resulted in conflicting judicial decisions, significant commonalities in the conduct of the judiciary across cases were noted in the foregoing discussion. Hence, a brief examination of such judicial conduct may shed some light on what might have prompted the judges to deliver their decisions like that of Nallaratnam.

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A great deal of inconsistency can be noticed in judicial conduct in terms of the assessment of confessionary evidence brought before the courts. According to lawyers working in the northern and eastern regions of Sri Lanka, which are populated by the majority of the Tamil-speaking people, terrorist suspects have been treated leniently by Tamil-speaking judges, in contrast to their treatment by the courts outside these regions.112 While the majority of Tiger suspects are indicted in Colombo, some suspects such as Ramani seem to have benefited by less harsh treatment by the courts in the north or the east. Although clear reasons for such inconsistent conduct cannot be established without an in-depth study, some lawyers have suggested that the Tamil-speaking judges in the northern and eastern courts have been responding to, and share, the public sentiment in these localities, which is sympathetic towards Tamil Tiger suspects. Such lenient treatment of LTTE suspects has been recorded outside the northern and eastern provinces on the exceptional occasion. For example, Colombo High Court Judge Titus Coorey acquitted several terrorist defendants without calling more than one witness in the trial.113 In these cases, the judge acquitted the defendants before the defence lawyer stood up for the cross-examination of the prosecution’s first witness. Judge Coorey exercised his discretion by imposing a tougher burden of proof on the prosecution, and in one case noted: ‘half an hour is not adequate for the suspect to reconsider his decision to give a confession […] [referring to the ‘cooling time’ given by the ASP to the suspect to contemplate his decision to confess]; hence I am not allowing to mark this confession as a piece of evidence’.114 Other inconsistencies in judicial conduct have been noted in this research. For example, while judges in Colombo have refused bail for terrorist suspects, on some occasions judges in the northern and eastern provinces have released suspects, such as Ramani, on bail.115 Further, during ceasefire times, some judges have given suspended sentences to defendants who have been indicted for lesser offences (such as failing to provide information to the government authorities on terrorist activities); thus, the defendants were able to plead guilty and thereby be released. Irrespective of the aforementioned exceptions, judges in the Sri Lankan courts have generally been sympathetic towards police officers, whose 112 Field interviews (July 2007). 113 Poovalapillei Jayampathi (HC 8425/97, unreported), Subramaniyam Sri Rajan (HC9021/97, unreported) and Subramaniyam Anandarajha (HC 8094/96, unreported). 114 Subramaniyam Anandarajha (HC 8094/96) Journal notes on 20 November 1997. It should be noted that other similar judgements were not found during this research. 115 Ramani was released by a High Court judge in the eastern province when the indictment was served, two years after her arrest.

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lives have been constantly threatened by the rebel attacks. Conversely, in most cases judges have displayed harsher attitudes towards terrorist defendants.116 Common to most of the trials of Tamil Tigers is that judges have shown no sensitivity with regard to the significant inequality of social status between the defendant and the prosecutor’s witnesses, particularly in relation to language skills and the ability to articulate one’s testimony.117 The judges tend to ignore the fact that what they are assessing is not only the credibility of the stories of the witnesses, but also their skills, knowledge, and experience. In a typical voir dire inquiry, while the defendant steps into the witness box for the first time in his life, the police witnesses from paramilitary policing units have prior, often substantial, experience appearing before court as a witness. According to Douzinas et al., judges should approach the law as a ‘coherent and self-referential system of rules’, but judicial discretion may become a key instrument for interpreting the law when there is an ‘indeterminacy’ to the ‘settled’ meanings of the rules. When judges apply judicial discretion, moral, political or policy-based values are usually factored into the interpretation of the law.118 This means that judicial decisions are often influenced by judges’ political opinions, social biases, and personal values, which are then introduced into the criteria adopted in applying judicial discretion. Similarly, judges in Sri Lanka are not immune to such political and moral influences, not to mention ethnic sentiments. As was presented in Chapter 1, although Sri Lanka has maintained certain colonial structures within the judiciary based on the principle of the separation of powers, the independence, and integrity of the judiciary has been continuously influenced by the political landscape.119 Within the counter-terrorism 116 There are three examples presented in this research: Nallaratnam (the current chapter), Sellapulle (Chapter 1) and Prem (Chapter 2). Such harsher treatment was demonstrated by the judges adjourning the trials to dates several months ahead in the schedule, without apparent concern about the fact that the terrorist suspect’s remand term would then be extended by a long-term adjournment (unlike ordinary criminals who are released on bail). 117 See Solan and Tiersma, Speaking of Crime, p. 109. Solan discusses how a similar situation is evident in the US justice system. 118 Douzinas and Gearey, Critical Jurisprudence, p. 6. 119 Uyangoda argues: ‘Sri Lanka provides a disappointing experience in relation to the contribution made by the judiciary to the legal and public discourse of political and constitutional pluralism […] One may even go to the extent of saying that Sri Lanka’s higher judiciary has been slow in evolving itself into an institution of constitutionally defining the public policy framework for pluralism and multiculturalism’. See Uyangoda, Questions of Sri Lanka’s Minority Rights, p. 291. See Agamben, State of Exception, pp. 3, 51. 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.

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regime in Sri Lanka, what seems to have profoundly influenced the fate of terrorist defendants is the excessive use of arbitrary discretion by judges, arguably influenced by their political and moral values. On some occasions judges have made little or no effort to hide their attitudes, perhaps because most of their remarks cannot be recorded in the court transcripts (and hence cannot be used as grounds for appeal). A defence lawyer of one Tamil Tiger prisoner who was convicted on the basis of confessionary evidence reported that a judge said in the open court, ‘I am going to convict him’ even before the trial had started. The lawyer added: ‘I asked for a date to make an oral submission at the end of the trial but the judge rejected my application. The judge was convinced that the defendant was a Tiger since the beginning and he was adamant that the defendant should be convicted’.120 These alleged remarks demonstrate a gross misuse of power and serious misconduct; however, the lawyer did not file an appeal in this case.

Justice denied The preceding discussion on the construction of the case against the terrorist and the inequities of the justice system, combined with the critique of the judgements in Nallaratnam, has provided a broader picture of the laws and practices that contribute to the miscarriage of justice in Sri Lankan courts. This discussion has adequately answered the question posed earlier (What are the possibilities and limits of a fair hearing for Tigers from the judiciary in Sri Lanka?), submitting that the miscarriage of justice is widespread in the counter-terrorism regime due to the oppressive nature of the counter-terrorism laws and the conduct of those who implement them. While Nallaratnam and Sellapulle fall within the minority of cases in which the suspects have been wrongfully convicted, thousands of other suspects have been subjected to the miscarriage of justice by long-term detention without bail and by not being compensated for such detention when they were acquitted. This trend continued in Sri Lanka, even after the military defeat of the LTTE. A blind conformity is apparent in the Sri Lankan justice system to the persecutory practice of long-term, indefinite detention followed by a prolonged court hearing. Further, there seems to be a level of denial among the judiciary about such miscarriage of justice – that a vast number of terrorist suspects have been wrongfully incarcerated because 120 Field interviews (June 2007).

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their confessions were fabricated or extracted by oppression. Questions need to be asked about whether this persecution is continuing because of institutional prejudices and systematic racism against the Tamils. While this research does not intend to undertake an in-depth analysis of racism or other types of prejudice among judges in the Sri Lankan judicial system, we cannot deny the possibility of racist conduct within the judiciary. According to the materials presented in Chapter 1, racism against the Tamils has been institutionalised in the state’s agencies for many decades, and it is undeniable that the judiciary has often been a participant in enforcing such systematic racism.121 Moreover, the ongoing threat posed by the Tamil Tigers by their indiscriminate attacks on the state’s institutions and civilians may have shifted the attitudes of Sinhalese judges towards adopting racist attitudes against Tamil defendants. Although such speculative accounts cannot be applied universally, research conducted on similar subjects could shed some light on the types of factors that may influence a court’s judgements. According to Philips, judges often claim that their political ideologies do not influence their decisions, but that such denial must itself be recognised ‘as an ideological stance’.122 She adds that judges enact ‘political stances’, whether consciously or subconsciously,123 and they can be easily influenced by the morals, values and prejudices of the society to which they belong. Research shows that people who come from minority ethnic groups and lower socioeconomic classes are doubly disadvantaged in the criminal justice system because of the biases of the judiciary.124 Further, voluminous literature in the US and Australia, particularly in relation to the African Americans charged in courts administered by white Americans, provides evidence of the miscarriage of justice caused by ‘ethnocentric’ judgements.125 As race (or belonging to a particular racial group) as a social force can 121 There are no statistical data on the ethnic composition of the judiciary. According to the field observations, it appears that the ethnic groups in Sri Lanka are proportionately represented in the judiciary. This means that the majority of judges are Sinhalese. The ethnicity of individuals can be easily established by examining their names or surnames. Also see Uyandgoda’s argument that ‘Sri Lanka’s higher judiciary has been slow in evolving itself into an institution of constitutionally defining the public policy framework for pluralism and multiculturalism’. Uyangoda, Questions of Sri Lanka’s Minority Rights, p. 291. 122 Philips, Ideology in the Language of Judges, p. 81. 123 Ibid., pp. xii, xiii. 124 See Moynihan, Pandemonium, p. 29. 125 See Outlaw, ‘Toward a critical theory of “race”’, p. 102; Levin, ‘Responses to race differences in crime’, p. 151; Amnesty International, Racism and the Administration of Justice, p. 15; Moynihan, Pandemonium, p. 28.

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dominate all aspects of life,126 particularly in ethnically polarised societies, allegiances to one’s ancestry can influence individuals regardless of their supposedly neutral office.127 Within the context of such ethnic polarisation, the law and the way laws are interpreted by judges can reflect ethnic prejudices, particularly the preservation of ethnically biased presumptions and evidentiary burdens.128 Hence, such systemic discriminatory practices of the judiciary can reinforce the hegemonic agendas of the majority ethnic group/s, and it could be argued that such a scenario has underpinned the mass prosecution strategy implemented against Tamil Tiger suspects in Sri Lanka.129 Presenting the final analytical body of work in this research, this chapter has demonstrated that among other competing versions of the truth about confessions, the judgements of the courts have the greatest authority. In this chapter, it was submitted that in order to create a ‘reality’ about the offences included in a confession, the court trials have ‘zoomed in’ to adopt a legal formula that defines the legal truth about the terrorist, based on the level of the burden of proof to be discharged by the state (the prosecution) and the terrorist (the defendant). It was also noted that the terrorist is constructed as an ‘abstract enemy’130 in the domain of the law, ‘zooming out’ to the ‘abstraction’ or the broader aspects of the war: the hegemonic authoritarianism of the state, the counter-hegemonic military mechanism of the terrorists, ethnic sentiments, prejudices and the animosity between the two sides. These broader aspects of the war have been the factors that have influenced the legal process, in determining the truth about confessions, regardless of whether justice was fully granted to Tamil Tigers suspects. 126 See Douzinas and Gearey, Critical Jurisprudence, p. 278; and Haney López, ‘The social construction of race’, p. 192. 127 Pointing to the Hudgins v Wright (1806) 11 Va. 134 [1 Hen. & M.] [Sup. Ct. App. 180] case, Haney López argues that the law plays a role of reifying racial identities: ‘By embalming in the form of legal presumptions and evidentiary burdens the prejudices society attached to vestiges of African ancestry […] the law serves not only to reflect but to solidify social prejudice, making law a prime instrument in the construction and reinforcement of racial subordination. The judges and legislators, in their role as arbiters and violent creators of the social order, continue to concentrate and magnify the power of race’. See Haney López, ‘The social construction of race’, p. 192. 128 See Haney López, ‘The social construction of race’, p. 192. 129 At the inception of this research we discussed that by establishing the counter-terrorism regime, the Sinhalese hegemony has reinforced its authority over the Tamil minorities by suppressing their voice, their grievances and their counter-hegemonic military struggle. 130 See Spivak’s previously discussed submission about the construction of the terrorist as an abstract enemy in the domain of the law, and Gibbons’s assertion about the creation of primary and secondary realities.

6

Fantasies, fictions, myths, and denials about Tamil Tigers’ confessions

The confession transcends all other evidence as it ranks as the most influential of all forms of evidence that may be submitted in a criminal case.1 As the confession is provided by the defendant him/herself who has the ultimate authority to pronounce his/her crime, it is believed to carry the ‘best evidence’ on the suspect’s mental state2 and best proof of criminal intention or mens rea. Deconstructing the confessionary narratives of Tamil Tigers in this research, the reliability and validity of the confession were questioned. Further, competing versions of the narratives were presented, challenging the truthfulness and the evidentiary value of the Tigers’ confessions. Based on this analysis, a number of propositions were presented: that the confessions derive from institutional fantasies of victory at war, that they carry fictions rather than factual accounts, that they reinforce the myths that tortured suspects tell the truth, and that the state, including the judiciary, is in denial about the persecutory practices used within the justice system to determine the ‘truth’ of these confessions. One of the key objectives of this chapter is to revisit these propositions in light of the broader discourse on the war against terrorism. This exercise can be commenced with a discussion on the military and political upheavals that have dramatically changed the landscape of the Sri Lankan ethnic conflict. Retracing the intended outcomes of the state’s mass prosecution strategy, we can then consider whether the state has achieved its goals. Next the core themes presented in the previous chapters will be recapitulated, followed by a summary of the empirical findings. Finally, the likely future of confessionary evidence in the criminal justice system in Sri Lanka will be briefly considered.

1 See Wrightsman and Kassin, Confessions in the Courtroom, p. 1; and Foucault, Discipline and Punish, p. 38. 2 Sanders and Young, ‘From suspect to trial’, p. 1046.

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End of the Tamil Tigers’ era3 When this research project began in 2006, the LTTE was at the peak of its power, controlling nearly one-third of the territories of Sri Lanka. As many previous attempts to defeat them had been futile, the then UNP Government resorted to striking a peace deal, which lasted for five years (2001-2006), and saved many thousands of lives. A segment of the Sinhalese population still believed that the Tigers should be defeated on the battleground, but most reluctantly admitted that this might not be possible. During this ceasefire period, the arrest and detention of terrorist suspects were suspended, and most of those who were in remand were given quick trials and lenient sentences. However, both sides of the conflict – the Sri Lankan Government and the Tamil Tigers – continued to repair their war machines and recruit new members, as if they believed it was only a matter of time before the peace deal would fall apart. Meanwhile, the Tigers faced their biggest setback yet – the revolt of Karuna, one of their deputy leaders. Taking this opportunity, SLFP presidential candidate Mahinda Rajapaksa promised his Sinhalese Buddhist constituency that he would put an end to the war and make no political compromises that might force him to share power with the Tigers. When he assumed power with a narrow margin in 2005, only a very few people believed that he could defeat the LTTE, which had breached the ceasefire agreement by carrying out sporadic attacks. President Rajapaksa gave marching orders to his armed forces, which were coordinated by the newly appointed Defence Secretary, his own brother Gotabhaya Rajapaksa, the self-proclaimed architect of the military campaign that brought down the Tamil Tigers in May 2009. However, the victory was tainted by allegations that approximately 40,000 civilians were killed in the last weeks of the conflict. 4 The government security forces herded nearly 300,000 fleeing refugees into mass detention camps where they were allegedly deprived of their liberty in a systematic manner, and were subjected to torture and sexual violence including rape and sometimes enforced disappearances.5 The international community demanded that the Government of Sri Lanka take action to investigate the allegations by passing UN resolutions which resulted in the appointment of a panel of experts by the UN (whose report 3 Unless specified, materials for this section of the chapter were sourced by field observations and materials published by the UTHR (www.uthr.org). 4 See the television documentary Sri Lanka Killing Field. Also see Wax, ‘New reports’. 5 UN Human Rights Council, Annual Report UN High Commissioner for Human Rights, pp. 7-8.

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was known as the Darusman Report). The report revealed harrowing findings that incriminated both sides – the government security forces and Tamil Tigers – and warned that, if proven, their actions would amount to war crimes and crimes against humanity.6 In an attempt to appease the international community, and in particular to water down the impact of the UN resolutions against Sri Lanka, President Rajapaksa appointed three commissions7; however, their reports were received with scepticism by the international community. For example, Amnesty International criticised the Lessons Learnt and Reconciliation Commission for failing to investigate witness testimony that would establish the identities of individual perpetrators of crimes against humanity, making no effort to protect witnesses, failing to adequately probe government and pro-government witnesses regarding allegations of violations committed by government forces and allied paramilitaries and making no recommendations aimed at bringing individuals to justice.8 According to news reports, approximately 10,000 suspected terrorists were arrested at the end of the war, many thousands of whom have since been released from the ‘rehabilitation camps’.9 After the military defeat of the Tigers, there appeared to be no reports from Colombo of any more massscale arrests of Tiger suspects. However, hundreds of suspects remained in detention, facing prolonged trials in the High Court. The UN Office of the High Commissioner on Human Rights claimed that the ‘Government has been slow to clarify the number and identity of detainees still held under the Prevention of Terrorism Act (PTA) and Emergency Regulations’.10 The report noted that the government acknowledged the existence of 258 remaining detainees, 60 of whom have not been charged, 54 who have been convicted in the past, while the remaining cases are pending. Nonetheless, reports have continued to emerge about the existence of secret and unacknowledged places of detention.11 It appears that the mass prosecution strategy has come to an end, with the completion of the remaining cases, as there are no more Tigers yet to confess, particularly after the defeat of the 6 UN, Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka, p. ii. 7 The Lessons Learned and Reconciliation Commission (LLRC), Udalagama Commission and Paranagama Commission. 8 Amnesty International, When Will They Get Justice?, p. 7. 9 There are no statistics available on the exact number of prisoners. According to news reports, including that of the BBC, when the Tigers were defeated in May 2009 the security forces arrested approximately 10,000 Tamils. Luthra, ‘Discipline, death and martyrdom’. 10 UN Human Rights Council, Annual Report UN High Commissioner for Human Rights. 11 Ibid., p. 5.

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Rajapaksa’s government at the 2015 elections by the common opposition led by Maithripala Sirisena and Ranil Wickremesinghe who have promised democratic reform. Yet, the legacy of the military victory of the Sinhalese majoritarian state hovers in a somewhat precarious position as a result of the war crime allegations, the ongoing grievances voiced by Tamil locals and the Tamil diaspora, and the continuance of the counter-terrorism regime including the PTA. What brought an end to the Tamil Tigers’ military movement in Sri Lanka? The concept of the Tamil Eelam nation itself lacked feasibility because the notion of Eelam was dependent on turning a blind eye to a number of factors that would prevent the rise of this independent nation, the most prominent being the strong influence of Sri Lanka’s powerful neighbour, India. India clearly did not want a separate Tamil state on its doorstep, which could lead to the revival of Tamil separatism on its own soil, and potentially threaten peace and stability in the Indian nation.12 The Tigers have also underestimated the Chinese influence in Sri Lanka. During the entire civil war, the Chinese Government continued to support Sri Lanka by providing funds and arms, and working to prevent any intervention from the United Nations. The land that the Tigers claimed as Eelam included the habitations of a large population of Muslims and a significant population of Sinhalese, who were alienated by the Tigers and sometimes systematically driven from their homes. Moreover, a large number of Tamils lived outside the northern and eastern provinces among the Sinhalese, some of whom openly rejected an Eelam, and were therefore treated as enemies of the LTTE. Ultimately, the key reason for the fall of the Tamil Tigers was the utter impracticality of their ultimate goal – the Eelam – rather than any of the other drivers, which are explained below. Speaking to a Sinhalese journalist, a Tiger who surrendered to the security forces with thousands of other fighters at the end of the war confessed: This time they [the army] came to the war correcting their previous faulty plans and mistakes. The army came forward from four or five fronts including Mannar, Wali Oya and Muhamali. With the little manpower we couldn’t fight in four or five fronts. Also we needed large numbers to treat the wounded, recruit new members to replace the dead fighters and to supply food and weapons, and these members have to work very hard. You can fight under such hardships for a month or two but our fighters were exhausted doing this between 2006 and 2008. Because we couldn’t 12 See Gunaratna, Indian Intervention in Sri Lanka.

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face five fronts, when one of our frontlines are weakened the army would break into our areas. When we converge all our strength to face one front, the army would break in from the other fronts […] [T]hey came forward like pouring water into a bag of cement. You wouldn’t know from which side they attacked.13

In January 2009, the Tigers were forced to evacuate their operational headquarters at Kilinochchi, somewhat in disbelief as they had not yet realised that their enemy had undergone a signif icant transformation in the preceding three years. By then, the Government of Sri Lanka had injected massive amounts of funds to recruit soldiers and to purchase modern weapons. Critical intelligence material poured into the hands of government military officers from Tiger defectors, making it impossible for the LTTE to undertake sporadic attacks outside the war zone to divert the government’s focus on capturing territories in the north and east.14 The Tigers’ sole tactic at this time was to take nearly 300,000 civilians hostage and retreat with them, hoping for an international intervention to save the hostages’ lives. It was the last monumental mistake the Tigers made – evacuating all of their people and resources to a self-created trap instead of dispersing and escaping to safe territories. The government claimed to have launched the world’s biggest hostage-rescue mission, cornering the entire civilian population and almost all of the living Tigers within a thin strip of land in Mullaittivu embayed by the army, navy, and air force, who fired upon them indiscriminately, massacring Tigers and civilians alike. Backed by the sponsorship of the new regional super powers, India and China, the Sri Lankan Government ignored the calls for a ceasefire that came from the mass rallies organised by the Tamil diaspora in North America, Europe and Australia. While thousands of conscripted Tigers gave up their weapons and uniforms to join the flow of refugees crossing the Nandikadal lagoon on makeshift barges under a hail of gunfire, the remaining Tigers indiscriminately fired at the fleeing hostages. The graphic images of the unending flow of starving refugees crossing the lagoon dominated news screens all over the world, along with images of the dead body of the once invincible supreme leader of the Tigers, Prabhakaran, lying on the muddy banks of the lagoon. The official version of the story, that his body was found by soldiers, was contradicted by rumours that senior Sri Lankan Army officers tortured and assassinated the Tiger leader, who came forward to 13 Priyantha, ‘Stories of rehabilitated Tigers’, 30 May. 14 These defectors mainly belonged to Karuna’s group, which broke away from the LTTE in 2004.

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surrender according to previously agreed terms. The images of the slain Tiger leader showed a gunshot wound in the centre of his forehead, suggesting his execution by firing squad.15 What occurred in the last months of the war not only removed the Tigers’ armours of invincibility, but shattered their faith in martyrdom, their lifesacrificing altruism, and their strategy of suicide by cyanide. The leaders who preached martyrdom and discipline were the first to betray their liberationist ideologies. One surrendered Tigress reported that on the last day of the war the leaders allowed their cadres to surrender, and she was left on the path of the advancing army to be found, bandaged with rags covering her wounds. She said, ‘that day I tasted the utmost bitterness of my movement. We never fought this war to surrender and however, if they made that decision a few weeks earlier we could have saved thousands of men and women’.16 Another surrendered Tiger added that he learnt that the leader of his division had sent his wife, children, and relatives away by boat to escape via the sea: ‘Our members felt so disappointed because the leaders were sending their families to safe places, while shooting the ordinary people who were trying to escape’.17 The UTHR reported: The LTTE politically took Tamil society hostage from the mid 1980s through systematic terror. Militarily stymied, it took physical hostage of 300,000 people in its final stages, repeatedly provoking the Army to underpin its claims of genocide, shooting or shelling hundreds who tried to escape and forcing thousands of their children who could barely carry a rifle to man the frontlines. Even as the LTTE leaders were discussing surrender terms, they were sending out very young suicide cadres to ‘martyrdom’ to slow down the army advance.18

Issuing a statement on the Tigers’ defeat, the Indian Maoists pointed out the mistakes of the LTTE: a loss of international support, a failure to study the changes in the enemy’s tactics and capabilities, and an underestimation of the enemy coupled with an overestimation of its own capabilities.19 Later, one former Tiger leader admitted that the post-9/11 political climate put the Tigers’ international political, trade and military activities in jeopardy, 15 Sri Lanka Ministry of Defence, The Dead Body of Velupillai Prabhakaran. Also see University Teachers for Human Rights (Jaffna), A Marred Victory and a Defeat. 16 Priyantha, ‘Stories of rehabilitated Tigers’, 23 May. 17 Ibid. 18 University Teachers for Human Rights (Jaffna), A Marred Victory and a Defeat. 19 CPI (Maoist), Post-Election Situation −Our Tasks.

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destabilising its fundraising mechanisms, arms procurement and international relationships.20 The UTHR report adds that the LTTE’s decline was steady but sure because ‘no nation could be built on slogans, sheer militarism, uniforms, propaganda and pageantry, when there is emptiness within the core’.21 Although the Tigers were somewhat oblivious to the oncoming disaster, their end had been heralded a long time prior. Dr. Rajani Thiranagama, a Tamil intellectual who was gunned down by the Tigers for criticising the LTTE, wrote about the defeat of the Tigers 21 years before it eventuated: The Tigers’ history, their theoretical vacuum, lack of political creativity, intolerance and fanatical dedication will be the ultimate cause of their own break up. The legendary Tigers will go to their demise with their legends smeared with the blood and tears of victims of their own misdoings.22

Understanding the demise of the Tigers requires us to revisit some of the materials presented in this research with a fresh eye, in particular the organisation’s official narratives, as outlined in Chapter 2. As no field research was conducted after the end of the war, it is difficult to verify whether the Tamil Tigers resisted being arrested when the war ended in the same manner as they had previously. Their suicide strategy was no longer effectively functioning in the chaotic last days of the war, which could have prevented many Tigers from committing suicide. The UTHR reported: Because of disorganisation during the latter period not all cadres had cyanide capsules. According to those who later escaped, a number of LTTE cadres began committing suicide by exploding grenades in their possession.23

Further, news reports reveal that after the war the Tigers were less reluctant to speak out about their past, probably because there was no longer any movement to protect; indeed, some of them bitterly condemned the LTTE leadership for its failures.24 It appears that those who cooperated with the 20 Jeyaraj, ‘K.P. speaks out’. 21 University Teachers for Human Rights (Jaffna), A Marred Victory and a Defeat. 22 Ibid. 23 Ibid. 24 See Priyantha, ‘Stories of rehabilitated Tigers’, 23 and 30 May.

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police and security forces were sent to ‘rehabilitation camps’ run by the Ministry of Defence, and most had returned home by mid-2011.25 There are no accurate data available on the number of Tigers detained in remand pending trial at the time of writing, but based on past events26 it could be assumed that these detainees would have been prosecuted based on confessionary evidence, unlike those who have been rehabilitated. The Emergency Regulations were lifted in August 2011 amid speculation that the Rajapaksa government would enact a ‘Patriot Act’. The PTA continues remains in force at the time of this research concluding.

Consequences of the mass prosecution strategy In earlier chapters, we discussed the reasons that could have prompted the state to adopt the use of confessionary evidence in its mass prosecution strategy, one of the key reasons being the lack of availability of other materials of evidence or witnesses other than police officers. Here it is important to contemplate the strategy’s effectiveness and broader consequences, in light of the findings presented in the previous chapters. According to Foucault, penalty must have an intense effect on those who have not committed the crime, and the idea of the crime must be associated with the ‘precise inconvenience’ of its corresponding punishment.27 As explored in this research, not only those who were convicted, but also those who were to be eventually released, faced the precise inconvenience of punishment by long-term detention, torture, and stigma engendered by the counterterrorism measures in Sri Lanka. However, this ‘precise inconvenience’ is only one aspect of the mass prosecution strategy and many other underlying objectives have been noted. According to Lutz et al., in Britain’s ‘political trials’ the government used the legal system to ‘control or punish’ individual Irish Republican Army (IRA) members and groups.28 They add that when the authority of the state is threatened, historically states have used court 25 On 23 April 2011, the Government announced that approximately 7000 LTTE members have been rehabilitated and released into the community while 4100 were still undergoing rehabilitation. See Dias, ‘Rehabilitated cadres to assist NE development’, 23 April. 26 Wickrematunge, ‘Sri Lanka’; according to the People’s Movement for Freedom and Democracy, there are about 10,000 prisoners held under the PTA in various prisons. 27 Foucault, Discipline and Punish, pp. 94-97. 28 Lutz et al. define ‘political trials’ as ‘trials in which either the prosecution or defence raises issues that are primarily political’. See Lutz et al., ‘British trials of Irish nationalist defendants’, pp. 228-229.

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trials to discredit dissenters and divert their resources away from their substantive struggle.29 The Sri Lankan Government may have aimed for a similar impact, but the LTTE movement’s substantial military and political resources appeared to be minimally affected by the mass prosecution strategy. Nonetheless, the Sri Lankan state achieved many moral victories over those Tamil terrorists who were brought before the court. The act of confessing bears strong associations with remorse due to its affiliation with the concept of ‘sin’; by confessing, a terrorist denounces an act and the motives behind that act, thus deploring and rejecting his/her past. The confession carries the shame of the past, and the suspect must return to his/her community with the shame of conforming and admitting guilt to the same authority against which they once fought. Further, by confessing, the terrorist effectively admits the defeat, in volunteering to participate in the penal process and be punished by the state. Thus, the public hearing of the confessionary evidence could be interpreted as the terrorist denouncing the terror and the struggle in order to conform to the authority of the state. The trials that are based on confessionary evidence bring the inherent benefits of the public hearing, with the opportunity to publicly humiliate and demoralise the enemy, and to publicise the images and narratives of the submissive terrorist. The most prominent objective of the mass prosecution strategy appeared to be the facilitation of indefinite detention, administered by the ‘no date’ court orders.30 This system effectively allowed the state to detain any suspected terrorist and prevent them from causing any harm to the state or to society. The strategy also arguably demonstrated the ‘precise inconvenience’ to the public, thereby acting to deter others from supporting the Tigers. In this regard, it is again useful to refer to the British anti-Thuggee campaign, which included an identical system of indefinite detention. Lloyd quotes the colonial police officers who were hesitant to release the Thuggees held in indefinite detention: ‘it is better that they [suspected Thuggees] should remain in jail than be allowed unmolested to carry on their system of murder & depredation’.31 This is precisely what the Sri Lankan Government aimed to achieve with its mass prosecution strategy, according to the defence lawyers interviewed in this research. Without a doubt, the state achieved this objective: most Tiger suspects have spent an average of three 29 See ibid., pp. 228-229. 30 The ‘no date’ orders allowed the state to detain any suspected terrorist for an indefinite period of time until they were indicted and the court case was concluded. 31 Lloyd, ‘Thuggee, marginality and the state effect in colonial India’, p. 214.

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years in detention, while some have spent up to six years, by the time their confessions are rejected and they are released by the court.32 The mass prosecution strategy in Sri Lanka effectively provided exceptions to many doctrines and principles within criminal law, including the presumption of innocence and the right to silence. These exceptions reversed the ancient legal maxim: ‘Let hundred guilty be acquitted but one innocent should not be convicted’.33 Hence, some have argued that the counter-terrorism laws in Sri Lanka may have done more damage than good in preventing terrorism. In 1979, during the early stages of the civil war, the Minister for Justice admitted that since the enforcement of the PTA the ‘situation deteriorated rather than eased’.34 S. Kathiravellupillai, MP for Kopay, responded: You are keeping people in detention labelling them [as] ‘Tigers’. You are denying human rights to individuals because you think they have got stripes on them. But what is really happening is this; the violence of your rule over Eelam, the racism behind that rule, the injustice behind that rule over another land [has resulted in the] breeding [of] Tigers. You are breeding Tigers in captivity.35

There is little doubt that the oppressive counter-terrorism laws have in fact pushed some of the progressive and neutral segments of the Tamil population towards embracing violent means of resentment36 and personal vendettas against the government forces.37 These laws resulted in racial discrimination, the violation of human rights and the miscarriage of justice on a profound scale, as the perpetrators were continuously protected and rewarded by the state. In order to substantiate these assertions, the last case study of this research can be presented – the story of Gajan.38 When Gajan was first arrested by a paramilitary police unit in Batticaloa in 1996 he was still a child preparing for his Grade 10 exams. He was in detention for one month, enduring heavy torture in police custody and 32 Field interviews, Colombo (June 2007). Also see the example of Veerakarthi in Chapter 3. Veerakarthi was arrested on September 1997 in Colombo and was released in June 2003, nearly six years later. 33 Pennington, ‘Innocent until proven guilty’, quoted in Jain, ‘“Let hundred guilty be acquitted”’. 34 Government of Sri Lanka, Hansard Reports, 21 May 1979, pp. 128-129. 35 Ibid., pp. 129-130. 36 Leary, Ethnic Conflict and Violence in Sri Lanka, pp. 55-56; and Enloe, Police, Military and Ethnicity, p. 153. 37 See Chapter 2. 38 Field interviews (August 2007). The information gathered in this interview was corroborated by medical certificates, character certificates, photographs and case files notes.

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missing the opportunity to sit his exam. He was arrested again in 1997 by the police, and tortured for a week in police custody. On both occasions Gajan was released without charges being laid, primarily because of the support of influential people in the local community who could attest to Gajan’s innocence and who plead with the police for his release. When he was arrested for a third time in April 2001, at a town in the central province, he was attending a wedding of a member of his extended family, far from the community who might call on the authorities to release him. He was heavily tortured by a team of police intelligence officers for one month. The police hastily constructed a story that Gajan was a Tiger who had come to the town to assassinate a government minister, and forced the prisoner to sign a fabricated confession. Other local police officers came to catch a glimpse of a dangerous ‘terrorist’ in captivity, and to congratulate their colleague for arresting Gajan. The Sinhalese daily newspaper Dinamina sensationally reported the bravery of the police, quoting from segments of the confession. Gajan paid for the glory of the police, spending several years in the remand prison until his confession was rejected by the High Court. Although Gajan was exonerated many years later, the confession that brought him this suffering and humiliation can be understood as perpetuating the police fantasy of catching a hardcore Tamil Tiger. According to Gajan, all of those who have come to know him following his arrest and detention started to believe that he was Tiger. The police officers, news reporters, prosecutors, and magistrates – all seem to have been collectively engrossed in a delusion that Gajan was a Tiger, simply because of the existence of a confession.

Tigers don’t confess? Chapter 2 – which sought to answer the question, ‘What attributes of the Tigers’ military subculture either support or dispute the fact that Tigers have confessed en masse?’ – presented the official narratives of the Tamil Tigers, who claimed that their members chose death over the humiliation of arrest, detention or court proceedings. The chapter highlighted the key attributes of the movement that repudiate the existence of their confessions: the Tigers’ faith in the principles of martyrdom, their pride, their loyalty to the leadership, and their utmost discipline. Most importantly, Chapter 2 identified how the Tigers’ suicide strategy prevented them from being captured alive. Based on the analysis presented in Chapter 2, it was argued that it was highly unlikely that the Tigers would have conformed with the system and confessed en masse, despite the fact that individual Tiger

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suspects seemed to have confessed either voluntarily or involuntarily on certain occasions. At the end of the chapter, we sought to illuminate the broader context surrounding the confessionary narratives by asking: are these contrasting narratives (of the Tigers and the police) rooted in institutionalised fantasies, which are deeply embedded in the organisational subcultures of the terrorists and the police? For nearly three decades, the Tamil Tigers maintained the war, promising an Eelam, and fantasising about the military defeat of their enemy, the Sinhalese majoritarian government. They attempted to actualise this fantasy by naming several of their operations Oyada Aleikals – the Unceasing Waves39 of suicide bombers who were converging from various directions to destroy army bases – for which the Tigers did not have adequate manpower. These fantasies have even been depicted in the Sinhalese media, reflecting the belief that the victory of the Tigers was imminent. Like other terrorist groups, the LTTE used suicide attacks as a political tool to instil fear psychosis in its opponents, thus forcing the victim to believe that the enemy is invincible. 40 There were stories of Black Tigers carrying laminated cards on which appeared, in Sinhalese, ‘I am filled with a huge explosive. If my journey is blocked I will explode it. Let me go’. 41 These methods of terrorising might have created a ripple effect by deterring the police from carrying out search-and-arrest operations. The photographs of blood-stained heads separated from the torsos of the suicide bombers could have daunted members of the police and security forces. One Sri Lankan cabinet minister once confessed, ‘we fight in order to live. They [the Tigers] fight in order to die’. 42 Conversely, the police also could have dreamt of their victory over the Tigers, hoping to arrest, apprehend and prosecute the enemy. It is possible that some police officers were searching for a fantasy to obscure the bitter reality of confronting a fearless enemy, and effectively recorded these fantasies in the confessions of Tigers. Chapter 3 sought to answer the question, ‘Can the authenticity of the Tigers’ confessions be determined by linguistic and narrative analysis methods?’ Affirmatively answering this question, the chapter presented an analysis of the templates of confessions, and discussed the institutional voice embedded in the confessions, which suppressed the voice of the individual 39 See Chapter 2. 40 Hettiarachchi, ‘Tamil Tiger “martyrdom” in Sri Lanka’, p. 132. 41 Pape, Dying to Win, p. 143 (citing Hoffman and McCormick, ‘Terrorism, signaling and suicide attacks’, p. 260). 42 Reuter, My Life Is a Weapon, p. 156.

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suspects. The Chapter then assessed sample confessions against the triple criteria based on the legal, semantic and semiotic elements of the evidentiary documents, leading to the conclusion that a significant proportion of the Tigers’ confessions were likely fully or partly fabricated. Accordingly, it was suggested that some confessions could have come into existence as complete fabrications, fictionalising the interactions between the suspect and the police officers. Further, it was argued that during the long stalemate of the war, the police might have used confessions to invent legends that reflected the fictionalised victory of the state over its enemy terrorists. As Spivak notes, in order to bring the terrorist to justice the ‘enemy’ needs to be constructed ‘epistemologically’ as the ‘object of knowledge’ in the domain of law, so that he could be punished or acquitted rationally. 43 One problem highlighted in Chapter 3 was the police’s lack of knowledge of their enemy, and thus their inability to fully construct this enemy within the domain of the law. It was established that the stark polarisation between the Sinhalese and Tamil communities caused by the war created an information vacuum between the two sides. It is possible that the police constructed their unknown enemy, fictionalising the incriminating story and using their fantasies of war victories,44 so that the enemy could be indicted and punished. Alternatively, it could be proposed that the fictionalised confession is part of the state’s broader militarised propaganda project of constructing war legends by glorifying the Sinhalese war heroes and demonising the Tamil terrorists.45 Throughout the war, the state carried out a parallel marketing campaign to seek popular support from its Sinhalese Buddhist constituency. For example, during the war a group of Sinhalese scholars and Buddhist clergy followed the path of soldiers in territories previously held by Tigers, exploring old brick 43 The enemy, Spivak claims, is presented as an ‘epistemological’ construction of the ‘other’ in the war on terrorism. See Spivak, ‘Terror’, p. 83. 44 The confessions of Tigers include many elements identif ied in f iction, including plot, characters and dramatisation. Seymour Chatman’s ‘story’ and ‘discourse’ based analysis could be applied to the Tigers’ confession. See Chatman, Story and Discourse, p. 17. Also note that there are certain elements that fictional narratives share with non-fictional narratives; therefore, fictitious elements could be mixed with facts and hidden within a legal document like a confession. For a discussion on what makes a text fictional, see Currie, The Nature of Fiction. Also see Stephens and Waterhouse, Literature, Language and Change. Further, Lieblich et al. argue that humans are natural storytellers. This understanding could be applied to the analysis of the confessions of Tigers, and one could argue that police officers do not have to be expert creative writers to fictionalise a confession. See Lieblich et al., Narrative Research, pp. 7-8. 45 De Mel suggests that the use of historical memories such as victories or legends and the public management of memory are the key elements in the process of militarisation of the society during the war against terrorism. The fictional confessionary narratives could be seen as part of this project of public memory management. See De Mel, Militarizing Sri Lanka, p. 8.

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mounds to rediscover them as ancient dwellings of the Sinhalese Kingdom. They hastily renamed the villages in Sinhalese terms, in most cases directly translating the Tamil names into Sinhalese, arguing that they were ancient Sinhalese territories. This campaign of (re)constructing and managing public memory in order to reclaim ethnic superiority over the Tamils continues at the time of writing. It is manifest in a multitude of state-sponsored exercises such as the rewriting of the histories of territories previously held by the Tigers, redefining the last stage of the war as a hostage-rescue mission, and demonstrating the state’s forgiving benevolence by ceremoniously releasing ‘rehabilitated’ Tigers into society.46 The mass prosecution strategy (by which the state brought Tamil suspects to the theatrically enacted public court hearing) appears as a part of the larger militarised project by which the Sinhalese majoritarian state constructed its superiority over the Tamils, fictionalising its war legends. These conceptualisations of the notions of fantasy and fiction in the Sri Lankan civil war cannot be conclusively proven by empirical data or other means in the context of this research. Nonetheless, they highlight important issues which need to be explored through research that is focused on the socio-psychological and anthropological aspects of the narratives and counter-narratives of this war. In Chapter 4 (which sought to answer the questions, ‘How have the state’s agents enforced the counter-terrorism measures among the suspect population, and how do such measures impact on individual suspects?), we explored the efficacy of policing strategies, presenting the suspect’s version of the story. The chapter included an analysis of the counter-terrorism policing strategies, highlighting their fundamental flaws, including the biased suspect classification systems, the unreliable methods of suspect profiling and identification, and the arbitrary nature of police decisionmaking in arresting and detaining. Further, Chapter 4 examined the cruel and degrading police investigation methods and argued that such methods have suppressed the truth about Tigers’ confessions. It was argued that the police used the confessions as a pretext to punish suspects (outside the legal domain), who in turn were reduced to a state of ‘bare life’, 47 and that the state used the confessions to access the ‘body’ of the terrorist and punish her/him. 46 Dias, ‘Rehabilitated cadres to assist NE development’, 23 April. Also see University Teachers for Human Rights (Jaffna), A Marred Victory and a Defeat. 47 ‘Bare life’ refers to the human who lacks the rights and legal status of a citizen or ‘a pure simple corpus’ – a concept based on homo sacer, a figure in archaic Roman law: Agamben, Homo Sacer, p. 11.

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Chapter 4 presented evidence dispelling the myth that the ‘truth’ is produced by interrogatory torture methods, or that suspects who experience the unbearable pains of torture tell the truth. Further, it was noted that the state and its agents continue to reinforce this myth in the public domain, thereby receiving popular support for the incarceration of Tamil Tiger suspects. Agamben’s concept of the ‘camp’ was adopted as a reference point in order to describe the paramilitary camp in which Tiger suspects are interrogated. Arguing that the ‘fact and law are confused’ in the ‘camp’, Agamben submits: ‘Whoever entered the camp moved in a zone of indistinction between outside and inside, exception and rule, licit and illicit, in which the very concepts of subjective right and judicial protection no longer made any sense’. 48 It is possible that these senseless spheres of the state of exception and ‘confusions’ could have reinforced war fantasies, fictions, and myths about torture, which were then incorporated into the confessionary narratives of the Tigers. 49 Chapter 5 introduced the notion of bringing the corpus of the terrorist to the domain of the law in order to indict and then punish or acquit them. Asking the question, ‘What are the possibilities and limits of a fair hearing for Tigers from the judiciary in Sri Lanka?’, the chapter explained the ‘journey’ of a suspect through the criminal justice system and the ‘formula’ of justice used by the courts to determine the truthfulness of a confession. In Chapter 5, it was argued that the truth about confessions has been suppressed by the principles underpinning the counter-terrorism laws and by the manner in which these laws have been implemented and interpreted. It was suggested that all of the state’s agents – the police, prosecutors and judges – are in denial about the gross miscarriage of justice occurring in the justice system, as these agents accept (at least tentatively) the confessions of Tigers as truthful. Further, it was argued that such denials might be possible due to the racist or prejudicial attitudes of the members of the judiciary, or the immense pressure placed on the judiciary to punish offenders. Insofar as the trials have a strong public interface, with justice ‘showcased’ at trials,50 the courts are clearly vulnerable to public pressure. Moreover, the threat of terrorism could place additional pressure on the judiciary to ensure the 48 Ibid., p. 170. 49 Comparatively lesser research has been undertaken on violence from the point of view of perpetrators; hence, Eyal and Sabine suggest that if anthropologists want to understand violent acts they need to study the perpetrators of such acts and not only their victims. ‘In most of the scholarly literature, violence is seen as anomalous and disruptive – as the reverse of social order’; in contrast, ‘violence can also be understood as an object of fascination, enjoyment, and celebration’. See Eyal and Sabine, ‘The celebration of violence’ p. 540. 50 McBarnet, Conviction Law, p. 81.

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punishment of terrorists rather than following due process and complying with the rules of evidence. Hence, the judges may have resorted to punishing defendants without obtaining adequate proof beyond reasonable doubt. For example, comparing three cases – that of the Guildford Four and Maquire Seven and Birmingham Six against IRA suspects in Britain – Lutz et al. argue that immense public pressure may be the only factor leading to the miscarriage of justice in these cases, in which the suspects were convicted based on uncorroborated confessionary evidence.51 Further, the terrorists were excepted from the ordinary juridical order by the state’s decision to divide and abandon the ‘exceptional’ from the ‘normal’,52 thus providing a rationale for the judiciary to deny justice to the terrorist.

The future of confessions Schmitt argues that: ‘The existence of the state is undoubted proof of its superiority over the validity of the legal norms […] The state suspends the law in the exception on the basis of its right of self-preservation, as one would say’.53 This submission accounts for the origins of the draconian counter-terrorism laws in Sri Lanka that allowed confessions as sole evidence against the dissenters of the state – reflecting the state’s claim to its ‘right of self-preservation’ from rebellions and the state’s authority to suppress such rebellions by proclaiming the state of exception. It is clear that for as long as these draconian laws are available, the Sri Lankan state will have the capacity to use them against its people. Sadly, Sri Lankans have witnessed three rebellions in which Sinhalese and Tamil youth have fought to topple the hegemonic authority of the state and against which oppressive laws, including those that allow conviction on the basis of confessionary evidence alone, have been used to brutally suppress the rebels.54 Evidently the oppressive elements of the state (against which these rebellions were launched) still exist in Sri Lankan society; thus, so too does the possibility of another rebellion against the state. As long as these counter-terrorism laws continue to exist as a permanent feature in the Sri Lankan criminal justice system, the cycle of violence will continue to be unleashed by the state against its own people, regardless of whether the rebels are Sinhalese or Tamil. 51 Lutz et al., ‘British trials of Irish nationalist defendants’. 52 See Lloyd, ‘Thuggee, marginality and the state effect in colonial India’, p. 220. 53 Schmitt, Political Theology, p. 12. 54 See Chapter 1.

Appendix Confession of Nallaratnam Singarasa 1 11.12.1993 day, 16.20 hours at Criminal Investigation Department Unit of Batticaloa prison. On my advice, Nallaratnam Singarasa, who is being detained under a detention order IS/86/2/N/D/1146 has been produced before me. He says that he wants to give a confession voluntarily. At this moment, I have advised the suspect to think further about this [giving a confession]. [I am] giving time and space for this. Now the time is 16.35. The suspect informed me that he is prepared to give a confession to me voluntarily. I have informed him that I am recording his confession under the section 16 of Prevention of Terrorism Temporary Provisions Act and the section 50 of Emergency Regulations and I am recording the statement under the powers given to me by the above sections. I have explained to the suspect that the statement given by him could be used as evidence in a court case under the above-mentioned sections. Further, I have explained the charges against him such as receiving military training after becoming an LTTE member, attacking Jaffna Fort, Elephant Pass army camp, Palali army camp, Kankasanthurei security post and attacking an army patrol in Arantalawa. Further, I have informed [him] not to give his confession due to any threat, inducement or promise. The suspect informed me that he cannot understand the Sinhalese language and he has no objections for recording his statement in the Sinhalese language. It appears that the suspect is in good health condition to make a statement. The Tamil statement of the suspect is interpreted to Sinhalese and the statement recorded in Sinhalese is interpreted to Tamil by Constable 15596 Hasim. According to my advice the statement is typed by Hasim in Sinhalese language. I have unfolded my service identity card and explained to him (to Nallaratnam) that I am Police Superintendent H.M.D. Herath from the Colombo Criminal Investigation Department. Now I am starting to record the suspect’s statement. 1 The confessions were written in Sinhalese and translated into English by the author. Both confessionary statements in this Appendix 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.

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Full Name: Nallaratnam Singarasa Age: 20 Date of Birth: 1973.05.06 Ethnicity and Religion: Tamil Hindu Occupation: Labourer Residence: Karavadi, Navakadu, Batticaloa Says as follows: I am the person who has been described above. The officer who is recording my confession unfolded his service identity card and informed me that he is Police Superintendent H.M.D. Herath from the Colombo Criminal Investigation Department. I recognised this gentleman. Also I was explained that the statement I am giving is recorded by this gentleman under the powers he has been given by the Prevention of Terrorism Act and the Emergency Regulations. I was explained that my statement given according to the above sections could be submitted against me as evidence in a court hearing. I was informed that I should not be giving my statement due to any promise, threat or inducement. Because I can’t understand Sinhalese language, I have no objections in recording my statement in the Sinhalese language because my statement is explained in Sinhalese. I was explained the charges against me, which are receiving military training after becoming an LTTE member, attacking Jaffna, Elephant Pass army camp, Palali army camp, Kankasanthurei security post and attacking an army patrol in Arantalawa. [I am] in good physical and mental conditions in order to give a statement. My father’s name is Kanapathipille Nallaratnam. My mother’s name is Thepadi Karunamma. Both of them are alive and they live in the above-mentioned address. I have included a description about my siblings of my family to the statement taken on the earlier date. I have been doing labour works and mustering cattle since early days and I have never been to a school at all. Around 1989 when the Indian army was leaving Sri Lanka, I was living in the above-mentioned address, doing labour jobs in the village. During this time an LTTE member called ‘Amchar’ contacted me and asked [me] to take some goods required at the LTTE camp in Kaanda area, so I agreed and when I was taking the goods [they] asked me to join the LTTE. When I went there I was handed over to a person called Ramanan at Kaanda LTTE camp. During this period, I stayed in the camp for several days and then I was taken with another thirty young men to the camp of a person called Ruben in Berut area. Then [we were] taken to a camp of a person called Ravi in Muttur area. [They] employed myself and the others in building bunkers, cleaning the surrounding area and other small tasks. Later about 200 were given training

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in this camp; first physical exercises, [then] AK-47, SLR, LMG, SMG [weapons] and hand grenades and I received the training voluntarily. This training period was about three months and I was given the name ‘Karan’ by the LTTE organisation. Later I was called Karan by everyone in the camp. [We] remained in the camp for about 10-15 days after completing the training and a group was sent to Mullaittivu LTTE camp and I was included in this group. While staying in Mullaittivu camp for about 02-03 months doing small tasks we were taken to put into a camp in Chavakchcheri around April or March months in 1990. While [I have been] staying for about one and a half or two months a war erupted between the LTTE and security forces. That time I was given an M-70-type weapon, 02 magazines and a cyanide capsule. This day I was informed by the LTTE leader who was in charge of the camp that my membership number is 345. Later we all went to Jaffna town. After we went there we remained in the houses in which nobody lived. During this time I was under the supervision of an LTTE leader called Asokan. Later for several days [we] launched an attack at the army camp in Jaffna Fort. I also took part in this attack. While we had been attacking like this for several days, the army officers abandoned Jaffna Fort and left. Later during the second or third month of 1991, [I] went with a group of 400 to attack Palali army camp. This day the leaders Balraj, Sornam, Asokan and Banu held the leadership. After we went there I was given the duty of cut-out2 [and we] rounded up Palali army camp and launched the attack. Several more did the duty of cut-out with me while about 15 died and I don’t know how many army officers died. I don’t know who received the shots which were fired by me. Later [I] remained in Jaffna then I stayed in Kankasanthurei cement factory with a group to launch an attack at Kankasanthurei army camp. About 20 LTTE members died in this fight and I don’t know how many army officers died. I returned to Asokan’s camp in Jaffna again. Several days later we were advised by Asokan to prepare for a large-scale attack. Accordingly a large number of crowd left to round up the Elephant Pass camp under the leadership of Pottu Amman, Dinesh, [illegible name], Soranam and Balraj. [We] rounded up the Elephant Pass camp and continued to attack for several days and a large number of our members died. I don’t know how many army officers died. After the attack our group under Asokan’s leadership came to the camp in Chavakchcheri and remained there. I was involved in the activities of this Chavakchcheri camp until around June 1992. Later because I wanted to go home and I informed this to Asokan [he] made the arrangements for this but through 2

‘Cut out’ is a term used to explain guarding a convoy.

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various other ways he brought me [back] to Berut camp. Here when I informed [him] that I want to go home, the leader called Karuna gave me a new membership number instead of my previous number. That was 2931 and the [Tamil] letter Aana was written before the number. [I] was given a short holiday of 6 days [so] I came home and then I went to [illegibly typed name] LTTE camp. There, according to an order that we received we went to launch an attack against the army in Arantalawa area. There, according to an order that we received we attacked a group of army officers who were checking the roads. LTTE members Regan, Kylie, Udayan died in this attack. I learnt that 21 army officers were killed and I further learnt that there were air force, army and police officers amongst the dead. Again we returned to the camp where we were staying earlier. While living like this for a while, I contracted with typhoid. I stayed in Sumit’s medical centre to receive treatment for this. At this place the weapons and the ammunition issued to me were taken away. While I was sick like this I came home without notifying anybody. I came [home] on a date in February 1992. Then 02-03 days later someone call Appa came to my home, took my cyanide capsule and the membership number, assaulted me and left. Later I gave up the activities of the LTTE organisation. While I was living like this, on 1993.07.16 when I was working in the paddy field, when the Sri Lankan Army rounded up our village and checked [for suspects] I was identified by an army secret agent and first taken to Kommadurai army camp and then brought to the army camp where I am staying currently. I admit the charges of receiving the training of LTTE organisation, as a result of that training attacking places such as Jaffna Fort army camp, Palali army camp, Elephant Pass army camp and Kankasanthurei and killing army officers and attacking an army patrol who were checking the road in Arantalawa and shooting and killing army officers. That is all what I have to say. The officer who is recording my statement has explained to me that now the time is 18.00 hours. My statement was read in Sinhalese and explained to me in Tamil. Now the time is 18.15. I have placed my left thumb impression certifying all the pages of my above statement and I was well explained about the places where mistakes were corrected. [I] admit the statement was correctly recorded. Admitted and placed the left thumb impression certifying [the statement]. I, Police Superintendent H.M.D. Herath, do hereby certify that I have correctly and honestly recorded the statement of above-named Nallaratnam Singarasa. Now the time is 18.20 hours. Now I am duly handing over the suspect Nallaratnam Singarasa to Lance Corporal Vijekoon of the Military Police to be detained where he [Nallaratnam] had been detained earlier. [illegibly Signed dated 93-12-11]

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I, Police Constable 15596 Hasim, do hereby certify that I have duly typed the statement of above-named Nallaratnam Singarasa and translated from Sinhalese to Tamil according to the advice of Police Superintendent H.M.D. Herath [illegibly Signed dated 11/12/93].

Confession of Sellapulle Mahendran 13. 12. 1993 day, 13.50 hours at Criminal Investigation Department Unit of Batticaloa prison. On my advice, Sellapulle Mahendran, who is being detained under a detention order, has been produced before me by Lance Corporal Ranasingha who works for the Military Police. This suspect volunteered to give a confession. At this moment, I have advised the suspect to think further about this [giving a confession]. [I am] giving time and space for this. Now the time is 14.10. The suspect informed me that he is prepared to give a confession to me voluntarily. I have informed him that I am recording his statement according to the powers given to me by the section 16 of the Prevention of Terrorism Temporary Provisions Act and the section 50 of the Emergency Regulations, and I have explained that the confession given by him could be used as evidence in a court case under the above-motioned sections. I have explained the charges against him such as receiving military training at an LTTE camp, attacking the Wali Oya army camp, attacking the Eravur police station and assassinating 08 police off icers, attacking army convoys at Manmunathurei, Kiyan­ keni and Vadamunai areas and seizing their weapons and not providing information about such terrorist activities to the government security forces. I have explained to the suspect that the confession given by the suspect should not be given due to any threat, inducement or promise. The suspect informed me that he cannot understand the Sinhalese language but he has no objections for recording his statement in the Sinhalese language. It appears that the suspect is in a good health condition to make a statement. I have unfolded my service identity card and explained to him that I am Police Superintendent H.M.D. Herath from the Colombo Criminal Investigation Department. I have received the assistance of Police Constable 15596 Hasim in order to interpret the suspect’s Tamil statement to Sinhalese and in order to interpret the statement recorded in Sinhalese to Tamil. According to my advice, the statement is typed by Hasim in the Sinhalese language. Now I am starting to record the suspect’s statement.

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Full Name: Sellapulle Mahendran Age: 19 years Date of Birth: [He] says it is unknown [underlined text is handwritten] Ethnicity and Religion: Tamil Hindu Occupation: Toddy tapping Residence: Becas Road, Vandaramullai Says as follows: I am the person who has been described above. The officer who is recording my confession unfolded his service identity card and informed me that he is Police Superintendent H.M.D. Herath from the Colombo Criminal Investigation Department. Because of this I recognised this gentleman very well. I was informed that the statement I am giving is recorded by this gentleman under the powers he has been given by the Prevention of Terrorism Act and the Emergency Regulations. I was explained that my confession given according to the above sections could be submitted against me as evidence in a court hearing and I should not be giving my statement due to any promise, threat or inducement. I have no objections in recording my statement in the Sinhalese language. I was explained the charges against me, which are as a member of LTTE receiving military training at a camp, receiving military technique training and arms training, attacking the Jaffna Fort’s army camp and Wali Oya army camp, attacking Eravur police station and assassinating eight police officers in June 1990, attacking army convoys at Manmunathurei, Kiyankeni and Vadamunai Areas, assassinating army soldiers and seizing their weapons and not providing information about such terrorists to the government military forces. I am in a good physical and mental condition in order to give a confession. I haven’t had a school education. I have been toddy tapping since my childhood. I have given a statement about three weeks ago at this office. In that statement, I have included information about my family members. 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.

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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. First [I] went to Eravur police station, captured 75 police officers and brought them with their weapons to a place called Vandaramullai. These police officers were detained in a house in Vandaramullai and then they were taken to a school in Pundandakal and detained again. It happened because the area we were staying was invaded by the army. 40 police officers who were there ran away from us. They ran with the weapons of our people who were guarding them. There were about 35 Sinhalese and Muslim police officers. The 08 Sinhalese police officers amongst them were killed by [LTTE] leaders Kalil and Ganga. The other Tamil and Muslim officers were set free. The bodies of the officers who have been shot dead were taken to an area in Periyawattuwan forest and buried. Even today, I can show that place properly. During that time of burial, I was on sentry duties guarding. We had received orders from our leaders [that we were] to be sent to Jaffna for punishment because the group of police officers escaped from us. [I was] put into a retraining session at the camp of the person called Nirodan in Sambukottam near Chavakachcheri. Meanwhile, one of our groups launched an attack at the army camp in Jaffna Fort. I too joined this attack with others who were being trained in Sambukottam. I heard that there were about 300 people of LTTE took part in this attack. This attack lasted for about a month. Later [they] went to launch an attack at Manalar army camp and I also joined this attack. Several of our members died in this attack and I can’t say exactly how many of them died. Then a few weeks later [we] went to attack Elephant Pass army camp. While I was going to this attack, I suffered from bronchitis, so I was admitted to Chavakachcheri hospital. After my illness I undertook certain tasks such as assisting with cooking and watching the sentry. Later because I have been trained to use 50 calibre weapons, I came to Batticaloa with a group which was headed by a leader called Joy and went to a camp of Karuna alias Amman in Thoppigala. After engaging in the duties of this camp for several days a group was organised and [we] went and attacked the army camps in Kalladi and Vadumunei. During this attack several army soldiers were killed and a few of our members were also killed. Later [we] went to Kokadeicholi and Manmunai areas and launched a similar attack. Several army soldiers were killed in this attack. We took over the army’s weapons. None of us were injured. After this we came to Tharati camp. Later as we received orders to attack another army camp, we came to the sixth post of Batticaloa Colombo road and attacked a group who were on road-checking duties. After this attack I became sick again and I received

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treatment. Several days later I took part in an attack against an army patrol who were on road-checking duties from Valachchenai to Welikanda. Several army soldiers were killed in this attack and we could take their weapons. I heard that our members also died. After this attack while I was running away, giving up LTTE and handing over my weapons to the person called Kopu, [they] captured me at Kadavali and I was sent to the base of Rudra master. I was kept in a bunker for 2 ½ months as a punishment. Later when I told them that I wanted to go home I was put into a bunker for 7 months. Later I was employed in security duties of LTTE camps in Karavai area. While I was there, I was advised to go home by Rudra master. I returned to my village and continued toddy tapping, and about eight months ago, I married the woman called Rathi who is the daughter of one Samiar in our village. While I was living like this, on 23 September 1993 I was arrested in an operation launched by the army and brought here where I am now. Before I was brought here I was taken to a place called Mavadiwembu and then I was brought here. I have taken part in a several attacks against the army before I was arrested by the army officers and I am unable to tell those exact days of the attacks at this moment. Accordingly I admit guilt for receiving training as a member of the LTTE and attacking the army camps of Jaffna Fort and Elephant Pass, attacking officers of Eravur police station, killing 08 officers and seizing their weapons, laying an ambush at the sixth post of Colombo Batticaloa road, attacking army officers and killing them, and attacking the army at Manmunai, Kalladi, Vadamunai and Manalaru areas. I took part in all these activities in my own will. That is all what [I] have to say. The officer who is recording my statement explained to me that now the time is 16.00 hours. My statement was read in Sinhalese and explained to me in Tamil. [I] admit the statement was correctly recorded. I have placed my left thumb impression certifying all the pages of my statement. I, Police Superintendent H.M.D. Herath, do hereby certify that I correctly and honestly recorded the statement of above-named Sellapulle Mahendran. Now the time is 16.15 hours. Now I am duly handing over the suspect Sellapulle Mahendran alias Sujee to Lance Corporal Ranasingha of the Military Police to be detained where he [Sellapulle] had been detained earlier. [illegibly Signed dated 93-12-13] I, Police Constable 15596 Hasim, do hereby certify that I duly typed the statement of above-named Sellapulle Mahendran and translated from Sinhalese to Tamil according to the advice of Police Superintendent H.M.D. Herath. [illegibly Signed dated13/12/93]

Acronyms ASP CBCA CJC ENDLF EPDP EPRLF EROS ICCPR JVP LTTE PLOT PTA SLFP SVA TELO TULF UNP UTHR

Assistant Superintendent of Police Criteria Based Content Analysis Criminal Justice Commission Eelam National Democratic Liberation Front Eelam People’s Democratic Party Eelam People’s Revolutionary Liberation Front Eelam Revolutionary Organisation of Students International Convention on Civil and Political Rights Janatha Vimukthi Peramuna (People’s Liberation Front) Liberation Tigers of Tamil Eelam People’s Liberation Organisation of Tamil Eelam Prevention of Terrorism Act Sri Lanka Freedom Party Statement Validity Analysis Tamil Eelam Liberation Organisation Tamil United Liberation Front United National Party University Teachers for Human Rights

Acknowledgements The author would like to thank the following persons and institutions: Dr Debjani Ganguli (ANU) Dr Caroline Turner (ANU) Dr Ned Curthoys (ANU) Julia Farrell (Manuscript Editor) Home for Human Rights



About the author

Visakesa Chandrasekaram has worked as a human rights lawyer, community peace worker, and an independent arts practitioner in Sri Lanka. He has also worked as a community law practitioner, human resources consultant and an arts practitioner in Australia. He was a deputy director of the National Association of Community Legal Centres in Australia. He held various human resources consultant positions in the NSW Government, including in the NSW Attorney-General’s Department. While working in Australia, Visakesa engaged in human rights advocacy work in Sri Lanka as a trustee of Home for Human Rights. Visakesa has given voice to a range of human rights issues in Sri Lanka through several creative pieces such as novels, stage plays and films. He was awarded a Doctor of Philosophy by the Australian National University for his research on the use of confessionary evidence under the counter-terrorism laws in Sri Lanka.

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Nallaratnam v Republic of Sri Lanka (Communication Number 1033/2001: Sri Lanka 23/08/2004 [CCPR/C/81/D/1033/2001-Jurisprudence]) Nallaratnam Singarasa vs Attorney General (S.C. SrL [LA] No 182/99) judgement date: 15/09/2006 unreported Perera v Naganathan ([1964] 66 NLR 438) Poovalapillei Jayampathi (Unreported HC 8425/97) Prerera v Inspector of Police, Galagedara ([1955] 57 NLR132) Queen v Gnanaseeha Thero ([1968] 73 NLR 154) R v Flynn and Leonard (1972 NIJB May) Ranjit Singh v State of Punjab (AIR [2002] SC, 3247) The Republic of Sri Lanka v Nallaratnam Singarasa (Unreported HC Case No 6825/94) Sellapulle Mahendran (Unreported HC 6894/94) Simon v State of Karnataka ([2004] 1 SCC 74) State v Jones (6P.3d 323 [Ariz. Ct. App. 2000]) State of Maharashtra v Bharat Chaganlal Raghani (AIR [2002] SC, 409) Subramaniyam Anandarajha (Unreported HC 8094/96) Subramaniyam Sri Rajan (Unreported HC9021/97) Thennakone Mudiyanselage Appuhamy ([1959] 60 NLR 313) Victor Ivon v Sarath N Silva Attorney General and Another ([1998] 1 SLR 340) Vivekanandan v Selvaratnam ([1977] 79 NLR 337) Weerasamy ([1941] 43 NLR 152) Weerawansa v Attorney General & Others ([200 SC 730/96])

Legislation The Anti-Terrorism Act (No. 2) 2005 (Cth), Australia The Anti Terrorism Act 1997, Pakistan The Code of Criminal Procedure 1979 (No. 52 of 1980), Sri Lanka The Constitution of the Democratic, Socialist, Republic of Sri Lanka (1978) The Emergency Regulations (3 May 2000), Sri Lanka The Evidence Ordinance (No. 14 of 1895), Sri Lanka International Covenant on Civil and Political Rights The Penal Code (No. 2 of 1883), Sri Lanka The Police and Criminal Evidence Act 1984, United Kingdom The Prevention of Terrorism Act, Sri Lanka (No. 48 of 1979), Sri Lanka The Prevention of Terrorism Act 2002, India Proscribing of Liberation Tigers of Tamil Eelam and Other Similar Organisations Act (No. 16 of 1978), Sri Lanka The Protection of Pakistan Act 2014, Pakistan The Public Security Ordinance (No. 25 of 1947), Sri Lanka

Index 9/11 14, 16, 47, 190 Actus reus 107, 121 Ahimsa 24 Air Tigers 59 Al-Qaida 31 Altruist 50, 61, 64, 70 Amirthalingam 30 Animosity 10, 25, 138, 141, 183 Aryans 21 Athulathmudali 29 Attorney-General 52-53, 118, 130, 146, 149, 159, 161-163 Audio 81, 90 Australian police (see also NSW and Queensland police) 126 Autonomous text 88-89 Autopsy 130, 138 Bail 83, 147-148, 157, 159, 161, 179-181 Balance of probability 165-166, 170-172 Bandaranaike Chandrika Kumaratunga 24, 60, 114 Mr 17-18 Sirimavo 18, 27 Bare Life 16, 43, 45-47, 132-134, 140, 198 Beyond reasonable doubt 34, 37, 84, 94, 147, 156, 164-167, 170, 200 Bhagavad Gita 63 Biopolitics 43, 46-48, 134, 136 Birds of Freedom 59 Paradise 142 Black July 19, 25 Black Tigers 59, 61-62, 67, 69-71, 196 British 17, 21, 31, 41, 47, 193 Colonial, Colonialism 17, 23, 40, 44, 48, 157, 162 Counter-terrorism 122-123 Court 166 India 124, 157 Law 34-37, 164, 167 Buddhism, Buddhist 18, 23-26, 45, 60, 186, 197 Burden of proof (see also standard of proof) 9, 33, 37, 39-40, 44, 165-167, 170, 172, 175-179, 183 Burger 17 Cakkavatti Sihanada Sutta 24 Caste 48, 65 Ceasefire 13, 20, 71, 179, 186, 189 Child soldiers 58 China 188-189 Chronicles 21, 23-24, 113, 135 Co-author 88, 102, 109

Code of Ethics 65 Silence 66, 68, 129 Cold War 30 Colonial (see also British) 21-23, 31, 34, 40, 44-45, 47-48, 118-120, 157, 162, 180, 193 Colonisation 17, 21, 25 Post- 20, 23, 31, 44, 48 Communist 59 Conscription 57 Constitution 17-19, 23, 34, 37-40, 129-130, 133-134, 149, 157, 167, 180, 182 Cooling time 95, 98, 104, 179 Corpus delicti rule 92, 165-166, 173-175, 178 Corrupt 118, 126, 158, 161 Court of Appeal 12, 97, 147-149, 152, 164, 173-176 Criteria Based Content Analysis 102 Cullavagga 24 Cyanide 12, 68, 71-76, 190-191, 203-204, 207 Danda 48 Death penalty 60 Deception detection 51, 102 Delight of cruelty 137-138 Detention Order 28, 38, 103, 129, 131, 147, 158, 201, 205 Dhammapada 24 Dharma 24 Diaspora 30, 188-189 Disappearance 129-130, 140, 186 Discretion 9, 16, 26, 121-122, 157-158, 161-163, 179-181 Dissanayake, G. 29, 60 DNA 32 Dravidian 21 Drug 30, 60, 167 Duraiappa, A. 59 Dutch 17 Dutugemunu 24 Elara 24 Evidence gathering (see also gathering evidence) 57, 85-86, 94, 138, 155 Exculpatory, Exculpation 14, 34, 89, 95, 142, 152, 177 Executive presidency 19 Fair trial 145-147, 176-177 Fantasy 73, 75-77, 113, 185, 195-199 Fascist 10, 31, 61 Federal Party 18, 25 Solution 20

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Feudal (see also semi-feudal) 20, 31, 45, 48, 119-120 Fiction 77, 79, 111, 113-114, 185, 197-199 Finance 30, 119 Forensic Linguistic 51, 54-55, 80, 99, 101-103, 106, 108, 110, 145, 152, 178 Psychology 33, 77 Fundamental Rights 34, 38-39, 116, 118, 130, 132-133, 148-149, 157, 159, 167 Gandhi, R. 60, 73, 142 Guantanamo Bay 134 Guerrilla 11, 19, 31, 59-60, 69 Habeas Corpus 147-148 Hearsay evidence 92 Heroes Day 62, 72 High Court 11-12, 52-53, 57-58, 83, 95, 116, 118, 145, 147-150, 152, 159-160, 169-170, 172-174, 176, 179, 187, 195 Hindu 24, 61, 63-64, 85, 202, 206 Homo sacer 43, 132-133, 198 Human Rights Commission Asia 142 Sri Lanka 138 Human Rights Committee (UN) 40, 53, 163, 176-177 Inculpatory 14, 95, 152 Indefinite detention 9, 16, 39-40, 43-44, 128-129, 158, 181, 193 Indian 48, 188 Army 19, 60, 75, 106, 142, 202 Government 19, 41, 48 Invasion 22 Police 74 Prime minister 142 Tamil 17 Indo-Lanka peace treaty 71 Intelligence 71, 113, 123, 126, 161, 189 Counter- 66 Divisions, units 85, 124 Gathering, management 31, 66, 75, 118-120, 125 Officers, agents 124, 195 Wing 66, 75 International human rights law 40, 145, 177 Interpreters 36, 52, 81-82, 84, 90-91, 95-96, 98, 104, 109, 111, 158-160, 168, 171, 173-174, 176-177 Interrogation 32, 71, 73, 97, 133, 148, 155, 168 Manuals (including police instruction manuals) 32, 126-127 Methods, techniques 33, 47, 68, 79, 91, 115, 118, 127, 132, 134-135, 142-143 Police 32, 57, 66, 91, 115-116, 129, 133, 160 Iraq 137 Irish Catholic 122-123

Republican Army (IRA) 123, 192 Islam 61 Jammu Kashmir 41 Judeo-Christian 50 Just war 24-25, 48-50, 146 JVP (People’s Liberation Front) 26-29, 136 Kuppi 72 Language Act 17 Legends 10, 21-22, 62, 73, 76-77, 113, 136, 191, 197-198 Leninist 61 Lexical 89, 98 Magistrate 35-36, 38, 97, 132, 147-148, 158, 164-166, 168, 172, 195 Malay 17 Maoist, Maoism 27, 59, 61, 190 Martyr, Martyrdom 50, 57, 61-64, 75, 190, 195 Marxist 31, 61 Mavirar 61-64 Mavirarkurippetu 72 Medical Evidence, certificate, report 98, 100, 115, 118, 133, 140, 149, 160, 168-169, 171-172, 174-175, 177, 194 Examination 97-98 Officer, practitioner 52-53, 71, 82, 85, 98, 130, 134, 139, 160, 168 Medieval 46-47, 137-138, 142 Mens rea 107, 121, 156, 185 Militarise, militarisation 15-16, 20-21, 41, 45, 61, 76, 136, 191, 197-198 Ministry of Defence 38, 130, 147, 192 Miscarriage of justice 32-33, 153-154, 159, 178, 181-182, 194, 199-200 Muslim 17, 20, 60, 188, 207 Myths 21, 23, 113, 144, 185, 199 National language 17, 36 Nazi 23, 43, 132 New wars 30 Northern Ireland 16, 32, 97, 122-123 NSW Police 127 Pakistan 40-41 Panopticism, panoply 48, 134, 136 Paradise 62, 142 Paramilitary 53, 75, 124-126, 129-130, 132-135, 141, 147, 180, 194, 199 Penal theory 47, 55, 115 Plea-bargaining 13, 116 Portuguese 17 Post-mortem 38, 46 Prabhakaran, V. 11, 20, 58-60, 62, 64-67, 69, 72-73, 189 Premadasa, R. 19, 30, 60

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Presumption of innocence 34, 130, 132, 163, 166-167, 194 Propaganda 10-11, 49, 57, 66, 72, 191, 197 Psychology 32-33 Queensland Police 126 Race 22-23, 63, 121, 182-183 Rajapaksa Gotabhaya 186 Government 188, 192 Mahinda, President 186-187 Rape 72, 139-142, 186 Rehabilitation 38, 187, 192 Revenge (see also vengeance) 10, 19, 25, 65, 141-142 Sathyagraha 18 Sea Tigers 59 Secular 15, 31, 61, 63 Self-incrimination 34-35, 97 Semantic 80-81, 92-94, 101, 115, 144-145, 197 Semi-feudal 40, 47-48, 120 Semiotic 51, 80-81, 92, 99-102, 115, 145, 197 Senanayake D.S. 17 Maithripala 29 SLFP (Sri Lanka Freedom Party) 17-20, 22, 25-26, 29, 186 Spatial 80, 99-100, 111, 145 Special exception 37 Standard of proof (see also burden of proof) 95, 171-172 State of emergency 16, 37, 44, 115, 128-129, 132-134, 157, 164 Statement Validity Analysis 51, 102 Stereotypes 126 Storytelling 55, 84 Suicide (see also Black Tigers, Cyanide) 45-46, 49, 54, 57, 59, 60-62, 66-75, 112, 117, 140, 142, 190-191, 195-196 Supreme Court 12, 38-39, 116-118, 130, 138, 147-149, 152, 159, 162, 173, 175, 177

Suspect Classification 198 Population 10, 42, 54-55, 115, 121-123, 125, 132, 161, 198 Syntactic, syntactical 80, 86, 88-89, 98-100, 111, 145 Tamil Nadu 22, 60 Template 55, 79, 81, 83-87, 89, 92, 96, 98-99, 104, 111, 196 Temporal 80, 99-100, 145 Theology 62 Thuggee 44-45, 124, 157, 162, 193 Tiyaki 50, 61-62, 64 Torture 12, 27, 38, 46-47, 72, 74-76, 100, 112, 130-131, 133-144, 147-149, 151-152, 160-161, 167-169, 171-172, 174-178, 185-186, 189, 192, 194-195, 199 Traditional homeland 17 Truth Tigers 66 TULF (Tamil United Liberation Front) 18-19, 25, 30 UN (United Nations) 163, 186-188 UNP (United National Party) 17, 19-20, 22, 25, 28-29, 186 US Army 137 UTHR (University Teachers for Human Rights) 17, 20, 190-191 Uyirayutham 61-62 Vaddukoddai Resolution 18, 22, 25 Vengeance (see also revenge) 47, 140-141, 144 Video Propaganda 10, 49, 57, 59 Documentary, documentation 50, 73 Recording 66, 81 Voir dire inquiry 37, 151-152, 165-166, 169-170, 180 Wijeweera, R. 27-28 Wickremesinghe, R. 188 Wrongful imprisonment 32