Miscarriage of Justice in the Bindunuwewa Massacre Case

by Asian Centre for Human Rights Review, June 1, 2005

"At no time there were any incidents among the detainees and the management. There were no incidents with the neighbours either…. It is clear from the information now received by the authorities that provocation from external forces had led to this situation," - thus spoke President Chandrika Kumaratunga immediately following the Bindunuwewa massacre and forewarned the acquittals of the accused.

On 27 May 2005, a five-member bench of the Supreme Court of Sri Lanka comprising of Justices T.B. Weerasuriya, Nihal Jayasinghe, N.K. Udalagama, N.E. Dissanayake and Raja Fernando acquitted all the four accused convicted by the Trial-at-Bar of the High Court on charges of mass murder of 28 inmates and attempted murder of 14 others at the Bindunuwewa Rehabilitation Centre on 25 October 2000.  Majority of the victims were children.  Nestled in the mountains of central Sri Lanka, the Bindunuwewa Rehabilitation Centre was intended as a showpiece for the outside world where former rebels of the Liberation Tigers of Tamil Eelam (LTTE) were rehabilitated rather than punished.

Immediately following the massacre, a team of the Sri Lankan Human Rights Commission visited the massacre site on 27 October 2000.  Despite the evidence of the policemen’s direct role in the massacre, the SLHRC essentially exonerated them, only charging them with dereliction of duty and set the tone for the final acquittal.  President Chandrika Kumaratunga immediately rushed two investigation teams to counter any international fall out.

When the trial began in 2000, there were forty-four suspects in the case, among whom nineteen were policemen.  On 25 March 2002, the prosecution filed indictment before the Trial-at-Bar against 41 accused who were charged on 83 counts including unlawful assembly, committing the murders of 28 persons and attempted murder of 14 others at the Bindunuwewa Rehabilitation Centre.

After more than a year trial, Trial-at-Bar convicted two police officers - Senaka Jayampthay Karunaratne, former officer-in-charge of the Bindunuwewa Police and Tyronne Roger Ratnayake, and three Sinhalese civilians - Sepala Dissanayake, M.A.Sammy and R.M.Premananda and sentenced them to death on 1 July 2003.

In its judgement on 27 May 2005, the Supreme Court judges held that "the Trial-at-Bar had totally misdirected itself by holding that the police had removed the detainees bodies from the scene to destroy the evidence since the evidence of ASP Dayaratne revealed that it was so done as instructed by the DIG to preserve peace in the area as there was a large concentration of Tamil estate workers in the surrounding area."  The court also acquitted the three villagers, M.A. Samy, D.M.S. Dissanayake and R.M. Premananda.

Any court is as good as the prosecution.  In Sri Lanka, where the independence of judiciary under Chief Justice Sarath Nanda Silva, former Attorney General of the Kumaratunga government, is seriously under question, the role of the investigators and prosecutors becomes more important.  However, from day one, the investigators and prosecutors worked in tandem to systematically destroy the evidence.

The five judges bench brushed aside a number of issues which were critical for conviction of the accused.

a. Organised massacre: Posters that were ignored

That the Bindunuwewa massacre was an organized massacre was completely overlooked by the prosecution and the Supreme Court.  The Sri Lankan Human Rights Commission reported that "a large number of posters had appeared in Bandarawela town, allegedly on the night of the 24th inciting people to violence against the inmates and the rehabilitation camp."  It further stated, "a statement made by one of the suspects who has been arrested had identified and named some of the persons who were responsible for the posters.  He has further identified those who instigated the violence and led the attack on the camp."

The Sri Lankan Human Rights Commission strongly recommended that this line of investigation be pursued. … "as all the information we (SLHRC) have been able to gather so far does not suggest that what occurred on the 25th was an unpremeditated eruption of mob violence caused by the provocation of the inmates.  It is more consistent with a premeditated and planned attack".

But the investigators never followed up this particular aspect.

b. Complicity of the police

"If not for the complicity of police officers, this would have been avoided….When the victims went running to policemen seeking protection, they were fired at by the police." – stated the Chairman of the three-judge bench of the Trial-at-Bar, Sarath Ambepitiya, in a 94-page judgement.

Nothing could be more emphatic about the complicity of the police.

During his examination by the state counsel before the Trial-at- Bar, one of the survivors, Thambirajah Nawarajah, stated that he was hacked by an axe inside the police canter by a group of about 7 persons.  Two or three police personnel were only a few yards away from where he was standing.

The police claimed that they had fired to stop the rioters.  However, the fact remained that not a single Sinhalese was found injured, let alone killed in police firing.

c. Identification of the culprits

During the identification parade that was held in the last week of November 2000 before the Bandarawela magistrate, survivors identified three teacher trainees from the Bindunuwewa teacher training college who had been allegedly involved in the massacre. This was ignored, too.

d. Destruction of evidence

There have been systematic efforts to destroy evidence.  Immediately following the massacre, the police arrested about 250 innocent villagers.  These people were released only after sit-down protests by other villagers at the front of the police station.

Mr. Premaratne, the Senior Superintendent of Police of Bandarawela, commenting on the action taken, admitted before the Sri Lankan Human Rights Commission that "the manner in which large numbers of villagers resident in the neighbourhood of the camp had been arrested had only had the effect of thwarting any purposeful process of investigation."

During the investigation, it transpired that bullets had been removed from the body of a victim. The police investigators failed to find or locate the bullets or their source during the course of investigation.

The Trial-at-Bar held the police responsible for removing the detainees’ bodies from the scene of the massacre to destroy the evidence.  Yet the Supreme Court held that the Trial-at-Bar was misdirected "since the evidence of ASP Dayaratne revealed that it was so done as instructed by the DIG to preserve peace in the area as there was a large concentration of Tamil estate workers in the surrounding area."  The Supreme Court, in effect, justified destruction of evidence on the ground of so-called 'preserving the peace.'

e. Identifying the real culprits – the chain of command

There were about sixty fully armed policemen present at the site of the massacre who did nothing try to stop the rioters who were armed with poles, clubs, axes, etc.  The investigation never sought to find out as to who had ordered these policemen to be present there.

The chain of command responsible for organizing the massacre and that resulted in the failure to prevent it was never investigated.

If the ethnic problem in Sri Lanka is to be resolved, the Sri Lankan government must do some soul searching on the mass acquittal of the Bindunuwewa massacre case.  Blaming the lack of evidence – which is primarily the failure of the prosecution that systematically destroyed evidence from day one - is unlikely to assuage the sentiments of the victims and ethnic Tamil minorities.  The ongoing reconciliation process has as much to do with finding a solution with the Liberation Tigers of Tamil Eelam (LTTE) as it has to do with restoring the faith of the ethnic Tamil minorities.  The administration of President Chandrika Kumaratunga has abysmally failed on that account.

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Index: Review/75/2005

 

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Posted June 2, 2005