Not so “Perfect A Blunder”

By Gamini Gunawardne (Rtd. Snr. DIG)

(March 10, Colombo, Sri Lanka Guardian) This is in connection with the article by Dr. Dayan Jayatillke, titled “The Fonseka affair: A perfect blunder?”

The purpose of my exercise here is not really to contradict or confirm the views expressed therein by Dr. Jayatilleke, but with a view to provide some, may be relevant or may be even considered irrelevant, different dimensions to look at some of his contentions. Not being a political scientist by any means, I would look at some of the issues from the point of view of a onetime enforcement officer/ investigator.
Dr. Jayatillake, inter alia, has stated as follows: “Surely, lessons could have been drawn from the conduct of Sirimavo Bandaranaike and Felix Dias Bandaranaike in the face of the 1962 coup attempt? Those leaders smashed the coup attempt, but did not seek to try those involved under the military regulations despite the fact those regulations existed and the accused were serving officers of high rank.”
Now let us look at the reality. This incident took place 48 years ago, may be just around the time that both the present Secy. Defence, the Army Commander and the Commander of the Military Police were just born or were mere toddlers. True, one need not necessarily live through history to draw from this experience. But the fact is that the subject of ‘learning from history’ though taught in American Universities nowadays, I do not know, subject to correction, if this particular case is taught or discussed as a learning experience in the SL Military Staff College, Batalanda or at the Military Academies of Kandawela or Diyatalawa or elsewhere, or even at the Police Higher Training Institute. Usually, the personalities who figured in such events, if living, are invited to the course, to discuss the pros and cons of their experience and answer the questions of the students. I know that a copy of the court case record and several volumes of investigation files of this case are lying in the shelves of the CID Library. But I do not think to date anyone including my humble self have ever peeped into these volumes, nor has any academic researcher or any other professional. So much for our professionalism and academic research in this country. Hence, it is no surprise that no lessons were drawn from the 1962 experience, in the present case.
Another factor that was an advantage for Mrs. Bandaranaike was that, the ’62 Coup investigation was done under the able direction and supervision of that brilliant, though eccentric and arrogant young Minister of Justice, Felix Dias Bandaranaike, the nephew of SWRD and son of Justice R.F. Dias. (So much for nepotism and family bandyism).The investigation itself was handled by a brilliant team of investigators of the CID which included Inspector Tyrrel Gunatilleke who later recounted all this to me. It is very unlikely that the Rajapaksa government had such an advantage to direct the present case which appears to me to be far more complicated, both politically and otherwise. Neither can one expect such standards of investigations in the present situation where all relevant organizations have been emasculated of all power and authority through progressive politizsation since 1972 by successive governments, to such an extent that Vice Chancellors of universities found it necessary to exhort us on whom to vote for! The final effect of this process was seen within 10 years, in the in the parliament bomb case in 1987 where the President of Country, Prime Minister and the Minister of Internal Security, were targeted among other top Parliamentarians within the Parliament building itself. An MP and a Parliament employee died in the attack while The Minister of Internal Security was critically injured. Though the suspect was traced and arrested, the case failed in courts due to sheer incompetence of the CID. It was perhaps the culmination of the effect of politicization following the ‘cleansing’ of that organization after the ’77 elections. In fact, during the run up to the ’77 election an angry JRJ had threatened to bring the Fourth Floor to down to the ground floor when he was elected! I think he accomplished it though not literally, as shown by the Parliament bomb case.
Another point of contrast between the ’62 case and the present case is that almost all the Military and police officers were not high profile characters except perhaps Col. F. C. de Saram who was a well known cricketer. They were in no way comparable with the Retd. Gen. Fonseka, who was fresh from an outstanding military victory who was admired as the greatest of war heroes who received world wide publicity, hyped also by the government too, for political reasons. He was also the popular defeated presidential candidate, where his supporters were peeved and shocked that he lost soundly. He was highly controversial in that he had threatened to expose his colleagues and the government leaders on alleged war crimes, to the International community. Naturally, the international community had his interest at heart. There was also his alleged concession to the TNA demands, in the run up to the election. To add to the confusion, he was suspected of corruption in the matter of purchase of some military equipment. There was further, his controversial visit to the US. Furthermore, there was the allegation that the government had suspected his motives and ill treated him during the last days of his military career. Hence, his case was highly politicized. Thus, touching him was indeed high explosive! On the other hand, in the ’62 case the public sympathy was for Mrs. B, the poor widow who had just assumed power and the country itself was shocked at this unheard of attempt to overthrow the government. The people were bewildered. Unlike in the present case the wives of these officers did not appear before cameras to garner sympathy for their husbands.
Even in the 1966 Coup case there was no real ballyhoo about the arrest of Ven. Henpitgedera Gnanaseeha Thero who was a respected Buddhist monk and even the then Army Commander, Richard Udugama who were both thrown into remand prison.. No awkward questions were asked of the government whether that was way to treat a respected monk and a popular army commander etc., though it was believed that there was much more media freedom then that now!
Information revolution had not taken place by 1962. There were no TV cameras, hand ‘phone cameras, television, internet, twitters or blogs and websites to report news round the world over instantly. Today, whoever got on the TV screens and electronic media first, had the day. The arrests in 1962 were done in different places, most of them past midnight. Most of them, were not violent, being members of a ceremonial army, navy and air force, not battle tested. So till morning, no body really knew what really was happening.
Thus, situation- wise the ’62 case was ‘child’s play compared to the present case. True, nevertheless the given circumstances were cleverly managed. But as could be seen from the facts given above, this case was far too complicated and dicy by any standards. It was certainly a difficult situation to manage. I do not envy those officers. They could not afford to fail. It is not always that one is pitted into such situations.
Yet, the court case of ’62 coup case was reversed by the Privy Council on the grounds that the suspects had been charged and convicted of offences that did not exist in the law books, at time of the commission of the said offences, i.e. cannot operate with retrospective effect. This was again the result, of the over smart thinking of the over confident and adventurous ‘bright spark’ FDB, the Justice Minister, who had his way at that time.
Then the statement that the suspects in the coup case were not arrested under the military law though they were of high rank. Again, the two cases are not similar in that, in the 62 case there were senior police officers as well as civilians such as Douglas Liyanage, Civil Servant, who turned out to be the first accused. So obviously, military law could not apply in the ’62 case.
That apart, I do not know whether a suspect in a case had the discretion of deciding as to, what law under which he would submit to his arrest and under what law he wouldn’t. May be this point would be thrashed out in courts when the legality of his arrest would be gone into. The only case that I know of is the ‘Main Case’ against the 1971 JVP insurrection where, as far as I could recall, Rohana Wijeweera refused to plead before the CJC because he held the view that this was a court set up by the government which did not have legitimacy. I believe, his position was that the government was illegitimate, against which he took up arms to overthrow. Hence, had no legitimate right to try him. He was nevertheless tried, convicted sentenced and duly jailed.
The question of which law to apply in such situations throws a very interesting challenge to enforcement officers, particularly in a high profile case with political implications which we normally refer to as ‘a tricky case’. In such situations the enforcement officers usually address the question as to, under what law to conduct their investigation. In the instant case they would have had a choice of deciding among three kinds of legal provisions. Viz., (a) Criminal Law (Penal Code) (b) Emergency Regulations and (c) Military law. Usually the criterion is, which law will yield the highest advantage or leeway, in addition to being fair in the circumstances. They appear to have opted to act under the military law because it gave them the best investigative and detention advantage.
When the CID was called upon to investigate an allegation of misappropriation of a large stock of smuggled wristwatches by Negombo Police H.Q. station where the suspects included the entire chain of command including the ASP himself in 1972, the top brass of the CID sat in session to determine the best investigational strategy. The CID then was unpopular among the uniformed police as much as among the society at large as this organization came down hard on all offenders both in uniform and other and was no respecter of persons. It also had behind them Dodampe Mudalali and an accused in the CWE case who jumped to their death from a Fourth Floor window, which brought in notoriety. How the arrests could be done with minimal addition to this unpopularity was also a major issue. The CID had several options; namely, to act under, a) Penal code, b) Customs Ordinance or c) under the Police Disciplinary Code. After a lengthy discussion, it was decided to act on neither. The decision was to request the DIG (Mr. A.C. Dep) to issue an administrative order to the relevant officers to report to Director CID on Special Duty to assist him in an investigation into the allegation of misappropriation of smuggled wristwatches, which was being conducted by the CID for the DIG. The police officers were required to take orders from Director CID regarding their movements thereafter. That eliminated the question of their detention. The SP Kelaniya was asked to look after the interests of his officers under investigation, by being present at the interrogations. This was despite our having the information that he too was given one wrist watch by the ASP as a souvenir. One could imagine the embarrassment of the SP when the ASP was under interrogation! The investigation was smooth sailing after this decision. All accused were finally convicted under the Police Disciplinary Code, where Snr. State Attorney Sarath N. Silva was the prosecuting officer.
We had to face similar challenge when in 1976 I had to arrest late Mr. Lalith Athulathmudli in connection with a case of conspiracy and attempted murder. Here was a formidable suspect, A Harvard LLM and a former lecturer in law at the University of Singapore who was threatening to become the next Minister of Justice. The SLFP government was sure to loose at the hustings in ’77. I timed his arrest for a Sunday morning when his chambers would be closed and when the man could expected be alone at home, so there was least room for a political fuss. Athulathmudali was an arrogant man thoroughly conversant in the law. He threw the book at us we threw the same book back at him, as we had done a lot of home work, with the Director Prosecution, Ranjith Abeysuriya. For some time it was like a game of chess. Finally he submitted himself to arrest as he ‘knew the law’ and his limits.
In both these cases as well as in many other, we then had the luxury of a lot of time to do our home work and map out our strategy in consultation with the AG’s Department. There were the luminaries like Noel Tittawella and later Ranjith Abeysuriya, Kenneth Seneviratne and down the line, the likes of Sunil de Silva, D.S. Wijesinghe and then Snr. State Attorney Sarath N Silva himself, readily available to consult. Tyrrel Gunathilake told me that Noel Tittawella had told him that when tricky matters as these were discussed with his guru, L.B.T. Premaratne A.G., he would say after considering all the options: “That is what the law says. Now let us see what prudence would say”. In the present case we do not know whether the enforcement officers had the luxury of consulting mature legal opinion before proceeding to effect the arrest within the time frame available, it being such a ‘tricky case’ with so much implications.
Then comes the much asked question, “is this the way to treat a national hero?”. A difficult question to answer. Also, a highly politically charged question. A counter question. Could there have been another way of doing it in the given circumstances? We do not know how rushed the enforcement officers were to effect the arrest. Could they have delayed this action? We do not have adequate inside information of the circumstances. Assuming that the facts revealed up to that time was compulsive, they probably had to decide how much more opportunity was the subject to be allowed to do further damage. They would have had to decide on the timing, place of arrest and the manner of arrest. The suspect officer was the former commander of the army and the Chief of Defence Staff, an aggressive personality whose reaction to an attempt to arrest would be unpredictable. He could react violently, knowing his personality and he could even resist arrest. Hence a possible strategy was, to take him by surprise leaving him little opportunity to fall back on any counter plan that he had in mind. Any softness could be interpreted to be a weakness he could exploit. The arrest also had to be accomplished quickly to avoid complications, hand ‘phone photographing or video cameras etc. Thus, they may have had to rush through the process. The total drama may have looked shoddy or in Dr. Jayatillake’s words ‘clumsy’, judged from the highest standards. However, I wouldn’t envy the plight of the arresting officers in the given circumstances. Thus, a certain degree of collateral political damage was probably inevitable in the circumstances. The risk had to be taken if the arrest was a must, at that point of time.