Mannar judge strikes at ER abuse

[TamilNet, Tuesday, 27 March 2001, 06:16 GMT]
The Mannar district judge, M.H.M Ajmeer, Monday ordered that two Sri Lanka Navy personnel, accused in the murder of a civilian, be kept for fourteen days in fiscal custody, rejecting a submission on behalf of the Navy that they (the SLN personnel) should be allowed to remain in the care of the armed forces until the conclusion of the investigations because Sri Lanka's Emergency Regulations (ER) provide for considering 'wrongs' committed by Sri Lankan security personnel under 'exceptional judicial circumstances'. The judge observed in his order that although arresting and detaining persons by Sri Lankan security forces personnel are legal under Emergency Regulations there is no provision anywhere in the ER that allows security forces personnel to cause the death of any person in their custody.

The special counsel for the SLN stated in his submission Monday that the purpose of the Emergency Regulations was to see that 'wrongs' coming under its purview should be tried under 'special circumstances', if members of the Sri Lankan security forces were involved in the commission of such wrongful acts.

"The decision of the Mannar judge is a significant step in the direction of exposing and curbing crimes committed against civilians in the north and east by Sri security forces under the blanket cover of the Emergency Regulations with scant regard for their fundamental rights as citizens of this country. The details of the case illustrate how members of the security forces who perpetrate blatant crimes against civilians in the north and east seem to take the Emergency Regulations for granted", said a human rights source in Colombo, commenting on the latest development in the Uthayakumar murder case.

The counsel appearing for the SLN, identified in the court records only as Lt. Commander Piyasiri, said in his submission in Sinhala that holding members of the Sri Lankan security forces would be detrimental to morale. "It will affect those who are in charge of national security", the counsel said, adding that there is concern for the safety of security forces personnel who may be kept in fiscal custody.

A legal source in the Mannar, meanwhile, said that there is an effort to stop judicial officers from taking firm action against security forces personnel involved in such crimes in the north and east; that stories about purported threats to security forces personnel currently held in fiscal custody for serious crimes such as massacres of innocent civilians in the north and east have been floated at this conjuncture with the express aim of bringing circumstantial pressure on judicial officers dealing with such cases.

The SLN counsel further submitted that the two accused sailors, Welisarage Ravindra Sanjaya Harischandra, 23, (sub lieutenant) and Kalupahana Arachchilage Sanjaya Prasad Kumara, 22, (Naval Rating) had carried out their duties in accordance with the comprehensive powers granted to them under the Emergency Regulations 1130/80, No. 1 of 2000 when they arrested, detained and interrogated Kandaiah Uthayakumar, 42, father of seven, on 28 February; that they had gone to arrest the suspect on information that he was harbouring a suicide bomber after duly informing their commanding officer at the Sunny Village Navy camp in Mannar and obtaining his permission for the arrest; that they interrogated Uthayakumar in a bunker of the camp and grappled with him when he attempted to escape; that they caused the death of Uthayakumar with no malicious intention but were only carrying out their duties in accordance with the rights given them under the Emergency Regulations, particularly No. 18 (1), (2) and (3).

"Our commanding officer assures the court that keeping two sailors in the Navy's custody will not in any manner pose a threat to the witnesses in the case", the SLN counsel told the judge.

Kandaiah Uthayakumar was arrested on 28 February by eight Sri Lanka Navy personnel, according to the evidence of his daughter recorded on 7 March. His body was handed over to the Mannar hospital the next day 1 March. Acting judge Mr. Emmanuel Caius Feldano held the inquest into his death on 5, 7 and 8 March. On 10 March he returned verdict of homicide. Magistrate Feldano observed in his verdict that the Navy personnel would have searched Uthayakumar's house and its environs if they were looking for the suicide bomber he (Uthayakumar) was suspected of harbouring.

The sailors were produced in court before the district judge M.H.M Ajmeer on 12 March. A Naval officer appeared in court and submitted a government circular that security forces personnel need not be kept in judicial custody and appealed the court to allow the sailors to be kept at the Navy camp.

The Judge remanded them for 14 days and allowed the Navy to keep the two under its custody. On Monday the counsel for the SLN adduced provisions of the Emergency Regulations to submit that the two accused should continue under Naval custody.

Rejecting the submission of the counsel for the SLN, Judge Ajmeer said that according to witnesses, the sailors questioned Uthayakumar only about smuggling. He was not asked about the suicide bomber; that according to the medical report by the doctor who examined his body, Uthayakumar's death was caused by strangling.

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