Assistance to and Protection of Victims of Crime and Witnesses Act was passed in 2015 and later amended in 2017 enabling witnesses to give evidence from outside SL

All thirteen accused acquitted of charges due to non-availability of sufficient evidence to continue the case in a satisfactory manner

By
D.B.S. Jeyaraj

Five Tamil students were killed near the beach in the Trincomalee town thirteen years ago on January 2,  2006. Two other students suffered injuries but survived. The names and dates of birth of the five victims were: Manoharan Rajiharan – 22.09.1985; Yogarajah Hemachandra – 04.03.1985; Logitharajah Rohan – 07.04.1985; Thangathurai Sivanantha – 06.04.1985 and Shanmugarajah Gajendran – 16.09.1985. The two injured youths were Yogarajah Poongulalon and Pararajasingham Kokulraj. 

The official version put out first was that all seven were members of the Liberation Tigers of Tamil Eelam (LTTE) who had been armed with grenades with the intention of attacking a security forces post. The grenades had accidentally exploded killing five and injuring two, but the initial claim was soon proved wrong. The post-mortem conducted by Trincomalee JMO Dr. Gamini Gunatunga determined that the five had died from gunshot wounds. Three had been shot in the head at close quarters while two died from shots to the chest and abdomen. Some had injuries that were not caused by gunshots.  Trincomalee Magistrate V. Ramakamalan conducted an inquiry and recorded an interim verdict of gunshot injuries. 

Reliable reports in the media as well as by reputed human rights organisations pointed the finger at sections of the security forces stationed in Trincomalee. The war against the LTTE was being renewed and fought at that time. On February 12, 2006, some members of the police and Special Task Force (STF) were taken into custody in connection with the killings. However, they were released in April that year for want of tangible evidence. The then Attorney General C.R. de Silva issued a directive that the case should be pursued again if the prosecution acquired fresh evidence. 

The Sri Lanka Human Rights Commission appointed former High Court Judge T. Sunderalingam as a special rapporteur to probe the killings. His report dated March 31, 2006 was not publicised due to some procedural hassles and transitionary issues at the HRC. The “official” fate of that report remains a mystery. Subsequently, extracts of the report were quoted by human rights organisations and activists in their writings. 

None was ready to say anything due to intimidation and fear. Contributing to this state of fear was the fate of a Tamil trishaw driver and photojournalist. Several days after the killing of Trinco-5, they were both killed by “unknown” persons

‘Wikileaks’ report
Interestingly enough, a ‘Wikileaks’ report that came to light a few years ago referred to a US State Department cable in October 2006. According to Wikileaks, Mahinda’s sibling Basil Rajapaksa who was a special adviser to the President at that time had admitted to the US Ambassador Robert O. Blake (Jnr.) that the STF was responsible for the killings and that there was no evidence to convict them. The Wikileaks report of the State Department cable quoted Basil Rajapaksa as saying: “We know the STF did it, but the bullet and gun evidence show they did not. They must have separate guns when they want to kill someone.” 

The war against the LTTE ended in 2009 with the military defeat of the tigers. Riding the crest of a wave of war victory euphoria, Mahinda Rajapaksa was re-elected as President in 2010. President Mahinda Rajapaksa appointed the Lessons Learnt and Reconciliation Commission (LLRC) in May 2010. It was chaired by former Attorney General C.R. de Silva known popularly as ‘Bulla’ since his rugby playing days at Royal College. The LLRC submitted its report to President Rajapaksa in November 2011 after the mandated 18-month period. Among its observations pertaining to the Trincomalee student killings was the following: “There are strong grounds to surmise the involvement of uniformed personnel in the commission of the crime.” There was no follow up action by the President on the LLRC report then. 

The reluctance displayed by the Rajapaksa regime in addressing issues of accountability and reconciliation led to increasing pressure by the ‘international community’ on the government. International human rights organisations played a crucial role in helping to sustain this momentum. One of the cases taken up by human rights activists was the killing of the Trincomalee students referred to in those circles as the “Trinco–5” case. The families of the murdered students who had fled Sri Lanka in the aftermath of the killings due to intimidation and harassment cooperated with the human rights activists to spotlight the lack of concrete legal action against suspected perpetrators. 

Mahinda Samarasinghe
The UN Human Rights Council sessions in March 2013 in Geneva were a watershed of sorts. Two of the parents concerned Dr. Kasipillai Manoharan, the father of Ragihar and Aiyamuttu Shanmugarajah, the father of Gajendran were in Geneva during the UNHRC sessions and participated in several meetings and conferences held on the sidelines. They pointed out that no action had been taken for seven years. Their impassioned pleas demanding justice for their children made a profound impact in Geneva. To his credit, the then Plantation Industries Minister Mahinda Samarasinghe who was in Geneva leading the Lankan delegation at the UNHRC returned to the country and pressed for an investigation and follow up action. Thereafter, the CID re-commenced its probe. 

With the CID probe in progress, the current Foreign Secretary Ravinatha Aryasinha who was earlier Sri Lanka’s permanent representative at the UN in Geneva addressed the UNHRC regular session in May 2013. During the course of his address, Aryasinha stated as follows: “Pursuant to recommendations made by the LLRC in relation to the killings of the five students in Trincomalee, investigations have been concluded and upon studying the material, the Attorney General has advised the police to initiate non-summary proceedings, and the formal institution of these proceedings before the Trincomalee Magistrate is due to take place in the first week of June.” 

On July 4, 2013, twelve Special Task Force (STF) personnel and a police officer were arrested and produced in court the following day. The officers were Inspectors Sarath Chandra Perera and Rohitha Vijithakumara, Sgt. M.G. Jayalath, Sgt. A.P. Amal Pradeep, Constables R.K. Ratnayake, M. Chaminda Lalitha, R.M. Udaya Mahinda Bandara, M.G.H. Sanjeewa, K.A. Tharaka Ruwansiri, J.M. Nimal Bandara, J.M. Senarath Dissanayake and S.J. Indika Thushara of the STF. The police officer was Sub Inspector P.G. Ananda Bulanawewa. On October  14, 2013, they were all released on bail. The case however proceeded in fits and starts. 

The 13 accused were charged by the CID under Section 296 of the penal code for committing the murder of Manoharan Rajiharan, Yogarajah Hemachandra, Logitharajah Rohan, Thangathurai Sivanantha and Shanmugarajah Gajendran by shooting near the Gandhi roundabout on January 2, 2006 and the attempted murder of Yogarajah Poongulalon and Pararajasingham Kokulraj under Section 300 of the penal code read with section 32. The CID had submitted seven productions to court in this connection and cited 36 witnesses. 

Intimidating witnesses
As the case progressed, it became apparent that the prosecution was finding it difficult to produce credible witnesses. Some of the key witnesses were the two survivors who were eye-witnesses and some close family members of the murdered students. What had happened over the years was that the two survivors and their families as well as the families of the killed students had all fled Trincomalee and Sri Lanka due to fear caused by continuous threats and consistent harassment. A systematic terror campaign had been unleashed to frighten them. This included the sending of letters by post saying ‘Get out of Trincomalee and Sri Lanka.’ It was specifically mentioned that Sri Lanka was a “Sinhala rata.”  

The families of the victims had therefore left the land of their birth one by one. They were now safe in foreign countries and not prepared to return to Sri  Lanka and testify in a Trincomalee court. Moreover, there was palpable fear among the people of Trincomalee to come forward and testify too. Over a hundred persons including vendors, people on the beach, passers-by, auto rickshaw drivers and curious onlookers had witnessed the incident in different degrees. However, none was ready to say anything due to intimidation and fear. Contributing to this state of fear was the fate of a Tamil trishaw driver and photojournalist. Several days after the killing of Trinco- 5, they were both killed by “unknown” persons. The trishaw driver was an eye-witness to the incident and had been prepared to testify in a trial as told by family members. The journalist had reportedly published incriminating photographs of the victims showing they had been shot dead point blank. 

Firearms were taken out and brandished. The youths were told they were going to be killed as a warning to the tigers in Trincomalee. The innocent youths began wailing and pleading. Their pathetic cries were heard far and wide

This state of affairs where key witnesses were reluctant to give evidence in a Sri Lankan court was sought to be remedied by the new government of 2015 headed by President Sirisena and Prime Minister Wickremesinghe. The Assistance to and Protection of Victims of Crime and Witnesses Act was passed in 2015 and later amended in 2017. These measures enabled witnesses to testify via Skype from a Sri Lankan diplomatic mission abroad. The witnesses concerned were in Australia, Europe and North America. 
The prolonged legal delay even after the advent of the new government prompted former US envoy Atul Keshap to tweet about it in January 2018 and reiterate “justice delayed is justice denied.” The then Law and Order Minister Sagala Ratnayake responded to it by tweeting that the case was progressing after the legal reforms. “We could not proceed with the case as the main witness was overseas and not in a position to support proceedings. The case is now progressing as new reforms have allowed the use of Skype evidence,” Sagala Ratnayake said on Twitter in January 2018. 

Amnesty International
In spite of well-intentioned action by the present government to proceed with the case, the reluctance of the key witnesses to testify persisted. They continued to keep refusing. Dr. Kasipillai Manoharan refused to give evidence via Skype and instead asked that evidence be recorded using satellite technology. There was also opposition to the idea of going to a Sri Lankan diplomatic mission and testifying via Skype. The position taken up by the potential witnesses was endorsed by reputed human rights organisations such as Amnesty International (AI). A report in a Colombo newspaper published in January this year stated as follows: 

“Amnesty International said a witness could only provide evidence to a diplomatic mission of Sri Lanka which was unacceptable. Justice to the students murdered over 13 years ago still eludes their loved ones and given the difficulties in securing witness testimonies, the Trinco-5 case has seen little to no progress in the most recent past. The Assistance to and Protection of Victims of Crime and Witnesses Act was passed in 2015 and later amended in 2017 enabling witnesses to give evidence from outside Sri  Lanka. However, the fact that a witness can only provide such evidence at a diplomatic mission of Sri  Lanka means a witness may face intimidation. The safety of a diplomatic mission is not sufficient for a victim to give evidence, especially in this case where levels of intimidation were so high,” Research, Campaigns, and Communications Assistant at Amnesty International Rehab Mahamoor told The Sunday Morning.  

It is against this backdrop therefore that the Trinco-5 case progressed. After lengthy legal proceedings, the curtain descended last week on July 3. Eight of the thirty-six witnesses cited were not heard by court as they had not made themselves available to testify. These included key witnesses including two surviving eye-witnesses. After protracted hearings, Trincomalee Chief Magistrate M.M. Mohammed Hamza acquitted all thirteen accused of all charges. The magistrate, after considering the evidence, ruled that the accused were released due to non-availability of sufficient evidence to continue the case in a satisfactory manner. Additional Solicitor General Dilantha Rathnayake prosecuted and Attorneys Dhanushka Madagedara and S. Chandrasiri appeared for the defence in the last stages of the case. Thus ended the Trinco-5 case. It is unclear at present as to what the Attorney General further proposes to do regarding this case. 

Writing from Toronto
The Trincomalee tragedy of five students being killed in cold blood is a sad episode I can ever forget or want to forget both in a personal and professional capacity. The truth behind the horrible killings was initially covered up by the State and State-controlled media. I was then a columnist for “The Sunday Leader” edited by my friend the late Lasantha Wickrematunge. I pursued independent inquiries from Toronto about what had really happened in Trincomalee and unearthed as much of the truth as possible within a relatively short period relying mainly on the telephone. Piecing together information obtained from primary, secondary and tertiary sources, I reconstructed what had happened in Trinco from Toronto. 

My article, when published on The Sunday Leader on January 15, 2006, upset the powers that be as it went against the grain of official propaganda about the incident. This article is one that I am proud to have written as it was the first of its kind to expose the terrible truth. I became the target of threats and intimidation as a result of the article. The only consolation was the sense of satisfaction one had in relating the painful truth and exposing deliberate falsehood. 

The youths could only hear the noise. Suddenly, they were kicked and pushed out of the truck. Even as they fell, they found that the entire area was now pitch dark. The lights in the vicinity had been turned off

Later, the University Teachers for Human Rights (Jaffna) published more detailed reports on the entire incident. However, the UTHR Special Report No. 20 issued on April  1, 2006stated as follows: “A full version of the incident has been given by D.B.S. Jeyaraj with which our sources are in agreement.” 

I shall conclude this article by including a condensed and slightly-modified version of the article written thirteen years ago about the tragic killings of five Tamil students in Trincomalee. 

Trincomalee town
January 2 of the New Year 2006 was a Monday. It was 5.30 in the evening when 20-year-old Manoharan Rajiharan set off from home on St. Mary’s road in the Trincomalee town. Both his father and mother were medical doctors jointly running the welcome medical clinic. He told his parents he would be going to worship at the Pillaiyar temple and the Pathragali Amman temple. Thereafter, he said he would chat for a while with friends at the beach and return. One of his friends, now an undergraduate at the engineering faculty in Moratuwa University, had come home for the New Year and was scheduled to go back the following day. Rajiharan said he would be back home by 7.30 p.m. Trincomalee had been tensed up for quite a while.

There had been much violence along with hartals paralysing normal life. Police and security personnel along with civilians had been targeted. The civilian killings and in some cases reprisal killings cut across ethnic barriers. On December 23, 2005, a contingent of STF personnel were deployed from Colombo to Trincomalee on the instructions of the then Defence Adviser retired DIG of Police H.M.G.B. Kotakadeniya. The STF unit led by Inspector V.A. Sarath Chandra Perera consisted of two sub inspectors, two sergeants, twenty-two constables and two drivers was placed under Kapila Jayasekera, Superintendent of Police (Operations), Trincomalee. Jayasekera, a former STF officer, appointed Sub Inspector Ananda Bulanwewa of the Uppuveli Police to liaise and work with the STF contingent. In the prevailing security situation, Rajiharan’s parents too were concerned over their son staying out till dark. But they were not unduly worried because they knew their son was a decent, level-headed boy. He was very punctual and if he said he would be back at 7.30 they knew he would keep his word. Besides, the place he was going to was not very far from home. Also, they knew his friends. All of them were quiet, well-behaved youths with little interest in politics – let alone tiger politics. They were youths with glowing dreams of a bright future. The parents had no worries about their son or his friends getting mixed up with the LTTE. 

Seven close friends
Seven young men, all of them born in the year 1985, gathered that evening at the Dutch Bay beach. The spot was near the Gandhi statue roundabout where the Dockyard road and Koneswarar or Fort Frederick road intersected. There was an important check post manned by Army, Navy and police personnel close by. Actually, there were three more check posts manned by naval personnel within a 100-metre radius. There was also a small boutique selling provisions. 

There were stone benches on the beachfront where people sat and took in the sea breeze. The seven close friends were now seated on those benches chatting gaily. They had been frisked and cleared at the check post before coming to the spot. They arrived on four cycles and a motorcycle with two “riding doubles.” Six of the friends were alumni of Sri Koneswara Hindu College. One was an old boy of St. Joseph’s College. The key figure in the group was Thangathurai Sivanantha, the Moratuwa campus undergrad. He had come home on December 31 and was returning on January 3. The seaside chit-chat was like a send off to Sivanantha. 

All of them had completed their A/Levels in 2004/5. Apart from Sivanantha, another too had gained entry to Katubedda. The others were hopeful of higher education or at least a good job in Colombo. Some had ideas of going abroad. They were good all-round students in both studies and extra-curricular activities. They were computer proficient too. Time just flew as the friends swapped stories and teased each other in good fun. 

Green trishaw 
It was about 7.15 when a green trishaw coming along Dockyard road slowed down. A grenade was thrown from the vehicle. It exploded yards away from where the seven friends were seated. The trishaw then sped away on Koneswarar-Fort  Road towards the Fort. The dazed friends realised the situation was taking a turn for the worse and cut short their conversation. They speedily mounted their cycles and motorcycle and prepared to get away from the spot. That was not to be! 

Almost as if on cue a security force truck trundled in quickly. Instead of giving chase to the trishaw, the occupants of the truck zoomed in on the seven Tamil youths. They surrounded them and forced them to kneel down. They started checking their ID cards. Thereafter, they began assaulting them. They were then put aboard the truck and repeatedly assaulted. Their explanations and protests were ignored. At this point, some more security personnel on motorcycles and in a land rover arrived. There was excited discussion in Sinhala among the new and old arrivals. The youths could only hear the noise. Suddenly, they were kicked and pushed out of the truck. Even as they fell, they found that the entire area was now pitch dark. The lights in the vicinity had been turned off. The youths were now hit again and forced to kneel down. 

After some more rounds of assaulting, the youths were forced to kneel down again. Firearms were taken out and brandished. The youths were told they were going to be killed as a warning to the tigers in Trincomalee. The innocent youths began wailing and pleading. Their pathetic cries were heard far and wide. 

There were more than a hundred people in the vicinity when all this started happening. But police and Navy personnel cordoned off the area and forced the people consisting of vendors and others relaxing on the beachfront to kneel down or squat or lie prostrate on the ground. Some could however see and/or hear partially what was going on. Almost everyone heard the report of the grenade explosion and the subsequent gunfire reports. 

Assassins began firing
After playing cat and mouse for a while, the assassins now began firing. Two of the youths were shot behind the ear. One was shot in the back of the head. The other four then scrambled to their feet and made a desperate attempt to escape by running away. They were mowed down by gunfire. They were shot in the chest, abdomen, shoulders and thighs and then collapsed. A little while after the firing was over, a grenade was thrown at the still bodies. It proved a dud and did not explode. 

The assassins were in no mood to take their victims to hospital. They delayed for nearly half an hour. The calculated delay presumably was to let the youths bleed to certain death. Finally, an ambulance was called and even the lights came back on “miraculously.” 

News began spreading and parents of the victims began converging at the hospital notwithstanding the security situation. Their long night of sorrow was made unbearable by the deliberate attempt to twist the truth. 

The security forces who brought in the youths to the hospital had made a police entry that some tigers plotting to attack the security forces had suffered casualties due to grenades exploding accidentally. 

This then was the version hastily disseminated by the security propagandists. Given the tense situation in Trincomalee and the vain boasts of the LTTE that people were rising up against the armed forces, there were many takers for this story. Many newspapers and news agencies too carried the security version initially. The Defence Ministry spokesperson as well as other Army and police officers also stood by this story. 

JMO  Dr. Gamini Gunatunga 
The truth however became known when the post-mortem and judicial inquiry were conducted. The Trincomalee Judicial Medical Officer (JMO) Dr. Gamini Gunatunga, himself a native from the district, conducted the post-mortem and ruled that all five dead victims had died due to gunshot injuries. Three had died of head injuries while the other two succumbed to abdomen and chest injuries. The JMO however observed that some of the victims had injuries other than gunshot wounds. But the fatal ones were from gunshots. 

With the JMO report, the explanation provided by the security forces was blown to smithereens. Trincomalee Magistrate V. Ramakamalan recorded an interim verdict of gunshot injuries and instructed the bodies be handed over to the families. But there was a hitch. The police at the hospital refused to release the bodies. They insisted that the parents sign letters accepting their children were tigers. Otherwise the bodies would not be handed over, they threatened. 

The parents of the victims were not prepared to do that. They had lost their innocent children. They were not prepared to sacrifice their reputation. They were not prepared to let them be stigmatised as “terrorists” when they were not. They simply refused to budge. 

One parent said: “If you don’t give the body, I will have a funeral with an empty coffin and a picture of my son but I will never admit to this untruth of calling my son a terrorist. I have lost my son but I won’t lose his honour.” TNA Parliamentarian from Trincomalee Thurairatnasingham too arrived at the hospital and exerted pressure. Finally, the cops relented and the bodies were released without any letter being signed. 

Meanwhile, Trincomalee Magistrate V. Ramakamalan began his inquiry. He spoke to the two youths receiving treatment at the ICU. One was Yogarajah Poongulalon and the other Pararajasingham Kokulraj.  Although conscious, the condition of one has not passed the critical stage yet. Dr. Kasipillai Manoharan and the woman lawyer Subashini Chitravelu made statements before the magistrate. Subashini is the sister of Mrs. Thangathurai, the mother of Sivanantha, the Moratuwa undergrad. The witnesses who testified at the inquiry were subject to several threatening calls in Sinhala. The families of the victims were also intimidated. They began suspecting they were being watched. 

Overwhelmed with sorrow
Trincomalee was overwhelmed with sorrow. On January 3, 2006, there was a spontaneous closure of schools and boycott of classes by students. Students of all communities and faiths expressed solidarity with the victims. Realising the public mood was turning bitter, the authorities withdrew security personnel from check posts and sentry points in the Tamil neighbourhoods of Trincomalee. Some enraged people destroyed a few of these deserted places. 

On the following day, more organised efforts were made by Tamil youths to continue the hartal. The element of genuine spontaneity prevalent on the first day was lost. On Wednesday, January 4, the bodies of the five victims were lying in their respective homes. They were all born in the same year on different dates. They had schooled together and now died on the same date. 

Shanmugarajah Gajendran, born on September 16, lived in Vidyalayam lane; Logitharajah Rohan, born on April 7, was from Sivan Kovil road; Thangathurai Sivanantha, born on April 6, was a resident of Vanniya lane; Yogarajah Hemachandra, born on March 4, lived in Customs street; Manoharan Rajiharan, born on September 22, lived in St. Mary’s road. 

Trincomalee was grief-stricken. People flocked to the houses of the victims. Again those condoling with the families were not Tamils alone but many Sinhala and Muslim families. Everyone knew what had really happened and of the innocence of the victims. The student population turned up in large numbers. The certificates, cups and medals won by the victims were laid out by the coffins. 

SrikoneswaraHinduCollege
On Thursday, January 5, the funeral was held at Srikoneswara Hindu College, generally known as Trinco Hindu College. The institution had a grand tradition of over a hundred years. Among its distinguished former principals was the great Tamil scholar Swamy Vipulananda who went on to become the first Tamil professor of Annamalai University in Tamil Nadu. 

The principal then was Mr. M. Rajaratnam. He was distraught by the developments. A special dais was constructed on the day of the final farewell at the college ground. The bodies were brought in individual processions to the college. Religious leaders of the Hindu, Christian and Islamic faiths addressed the mourners. Student representatives and Principal Rajaratnam too made speeches. They were emotional but eloquent. One thing rankling was the unjust charge that the victims were tigers. Every speaker refuted the accusation and condemned those responsible. 

Finally, the five bodies were taken in procession through the streets of Trincomalee to the Hindu burial ground near Ehamparam road. Once again, a few check posts were attacked on the way. Security personnel were pointedly absent. At the Madathady junction, some lumpen elements close to the JVP started pelting stones. They were quickly checked by the police providing security. 

Inseparable in life and death
Trincomalee had not seen such a large funeral procession after the one for former Federal Party Parliamentarian N. R. Rajavarothayam. After last rites were performed, the five friends, inseparable in life and in death, were laid to rest. 

D.B.S. Jeyaraj can be reached at [email protected]