Ex-SLA commander pays missing youthís parent

[TamilNet, Friday, 06 April 2001, 15:53 GMT]
Lt. Gen. Cecil Waidyaratne, a former commander of the Sri Lanka army Thursday paid 100,000 rupees as directed by Sri Lankaís court of Appeal to the father of a Tamil youth who went missing after he was arrested by the army in the Ampara district in June 1990. The decision of the court of appeal in the Habeas Corpus application on Kandaiah Yoganayagam, 31, is the first instance in which the Sri Lanka armyís high command has been held responsible by the Court of Appeal for the disappearance of a Tamil youth in the Ampara district. Human rights activists and Peace Committees in the district say that more than six thousand Tamil civilians were massacred or reported missing after being arrested by the Sri Lanka army and the Special Task Force commandos of the Sri Lanka Police in the Tamil villages and hinterland of Ampara between 1990 and 1993.

An application for an order in the nature of a Writ of Habeas Corpus under Article 141 of the Constitution of the Democratic Socialist of Sri Lanka to bring up Kandiah Yoganayagam, 31, who has been missing since 21 June 1990, after he was arrested by the army of Ampara was filed by Attorney At Law Nadarajha Raviraj at the Colombo Court of Appeal on December 9, 1993 on behalf of the petitioner Arumugam Kandiah, the father of Kandiah Yoganayagam by Arumugam Kandiah. Attorney at Law Mr.V.S.Ganesalingam appeared for the Petitioner. Mr. Riyaz Hamza State Counsel appeared for the 2nd and 3rd respondents.

The application for the Writ of Habeas Corpus in this connection mentioned the Officer in Charge of Ampara Army Camp as the first respondent and Lt. General Cecil Waidyaratne, the former Commander of the Sri Lankan Army as the second respondent and the Attorney General as the third respondent in the case.

The petition stated that:

ì1. Kandiah Yoganayagam in respect of whom this application is made is the son of the Petitioner.

2. The Corpus was a 31year old MSc Graduate and was an Assistant Conservator of Forest attached to the Forest Department in Battaramulla at the time of arrest.

3. The Corpus was an independent Researcher who followed the advanced course in Plant Pathology and completed a Research Project on Rot Leucenea and for short periods served in the Department of Agricultural Geology, University of Peradeniya and in the Department of Agronomy at Batticaloa University College.

4. On the 11th of June 1990 the Corpus came to Amparai on duty and having attended a conference at the Amparai Kachcheri went to the Petitioner's

Residence at Karaithivu and was staying there.

5. On the 21st of June 1990 while the Petitioner, the Corpus and other members of the family were at the said residence army personnel attached to the Sri Lanka Army Camp at Amparai who were on a search operation entered the said residence and wanted the Corpus to accompany them to proceed to Malihaikadu Boundary road and took him.

6. Even though the Petitioner and his wife pleaded for the release of the Corpus he was not released. Therefore the Petitioner and his wife also joined them and went towards Boundary road.

7. On the way, the army personnel stopped at every gate and collected large number of youths and as soon s they reached the Boundary road by the show of guns they chased the Petitioner and his wife and several other parents and took with them several youths including the Corpus.

8. Out of fear the Petitioner, his wife and some others crept into another path and followed their movements.

9. Then the Petitioner saw the army personnel forcibly boarding the Corpus and other youths into a CTB bus that was parked at the main road and the Bus proceeding towards Kalmunai.

10. Then the Petitioner having come to know from others who were arrested along with Corpus and released that they saw the Corpus detained at the Kalmunai army camp at Mini Kachcheri went to the said Camp on the 23rd of June, 1990 accompanied by his wife and daughter an pleaded for the release of the Corpus. The Officer in Charge of the camp told the Petitioner that all those arrested have been sent to Amparai on the previous day.

11. Then the Petitioner wrote to the Major in charge of the Kondaiwattuwan Army Camp who replied that no such person had been taken into custody.

12. Since the Corpus was not released and his whereabouts are not known, the Petitioner made representation to His Excellency the President, ICRC and to Hon.P.Dayaratne and appealed to them to have the Corpus released.

13. The Daughter of the Petitioner having come to understand that that several who were arrested by the Security Forces in the Eastern Province were being detained at the Magazine Prison, Colombo sought the permission of Secretary, Ministry of Defence to visit the Corpus at the said Prison for which the Secretary by his letter dated 12th October, 1990 replied that ìYour brother Mr. Kandiah Yoganayagam is being detained under the Emergency Regulations. As permission to visit suspects detained under the Emergency Reglations is being allowed by the Inspector General of Police, your letter under reference has been referred to him for the issue of a visit pass.î A photocopy of the said letter is annexed to this Petition marked 'P1'

14. Subsequently the Petitioner received a copy of a letter dated 22.10.1990, addressed to Commissioner of Prisons, Colombo by the Inspector General of Police in which it was stated that he has no objection to the Petitioner and his daughter Mrs.Jeyarasa Chandra visiting the Corpus at the New Magazine Prison. A photocopy of the said letter annexed to this Petition marked 'P2'.

15. Thereafter by his letter dated 26.10.1990, Secretary, Ministry of Defence informed the daughter of the Petitioner to treat his letter dated 12.10.1990 as cancelled and the whereabouts of the Corpus is being probed into which letter was follows (sic) by another letter written on 12.03.1991 stating that he had been informed by the IGP and the Commissioner of Prisons that the Corpus has neither been arrested nor detained by them.

16. In spite of all the attempts made by the Petitioner to trace the whereabouts of the Corpus, the Petitioner has not been successful.

17. That the Corpus has neither written to the Petitioner nor have communicated with him in any other manner whatsoever after his arrest.

18. Though 40 months have elapsed since the arrest and detention of the Corpus up to now the Corpus has neither been charged nor brought before any Court of Law.

19. The Petitioner believes that the Corpus is being illegally an unlawfully held in detention in an undisclosed Detention Camp by the Respondents.

20. The petitioner fears that he life of the Corpus may be in danger due to his long detention.

21. To the Petitioner's knowledge, the Corpus is a person of good character who has never been involved in illegal, criminal or subversive activities.

22. The 1st Respondent is the Officer in Charge of the army that arrested the Corpus, 2nd Respondent is the head of the Sri Lanka Army whose members arrested the Corpus and took him into custody and the 3rd Respondent is the Hon.Attorney-General.

23. Under those circumstances the Petitioner has become entitled in law to apply to Your Lordship's Court for the issue of a mandate in the nature of a Writ of Habeas Corpus directing the Respondents above-named to bring up the body of the Corpus Kandiah Yoganayagam before Your Lordship's Court forthwith to be dealt with according to Law.

24. The Petitioner further states that he has not previously invoked the jurisdiction of Your Lordship's Court in this matter.

Wherefore the Petitioner prays:-

…For the issue of a mandate in the nature of a Writ of Habeas Corpus commanding the respondents above named to bring up the body of the Corpus Kandiah Yoganayagam before Your Lordship's Court.

…That when so brought up, the Corpus as discharged or otherwise dealt with according to Law.

…For such other and further relief as to Your Lordship's Court shall seen meet.

The judges of the Court of Appeal who heard the case, said in their judgement of 17 January 2001:



"According to the petitioner the corpus was arrested on 21.06.1990 by the army personnel attached to the Sri Lanka Army Camp at Amparai during a search operation. The petitioner alleges that the corpus was not seen thereafter. The petitioner states that he came to know that the corpus was being detained at Kalmunai. According to the petitioner, this information has been supplied to him by persons who have been arrested during the same search operation and released by the army. Thereafter the petitioner was arrested by the Officers attached tot eh Army Camp at Amparai.

Subsequently, the Secretary, Ministry of Defence has informed Jeyarasa Chandra, the sister of the corpus, by letter dated 12.10.1990 marked P1 that the corpus is being detained under the Emergency Regulations and that permission could be obtained to visit the corpus from the IGP.

Further a copy of a letter addressed to the Commissioner of Prisons by the IGP has been received by the petitioner stating that they have no objection to the petitioner and the sister of the corpus visiting the corpus at the New Magazine prison. This document has been produced marked P2. The petitioner alleged that the corpus has not been relased upto now and alleges further that the corpus has been illegally detained. The Respondents having denied the arrest and detention of the corpus, the matter was referred to the learned Chief Magistrate of Colombo for inquiry and report.

Upon receipt of the record of evidence and the inquiry report from the learned magistrate and hearing submissions of Counsel summons was issued on the Secretary, Ministry of Defence, the Inspector of Police and the Commissioner of Prisons on 27.7.1998 Mr. Jinasena, Senior Assistant Secretary, Ministry of Defence (legal) has informed that although P1 has been issued by the Secretary, Ministry of Defence that they have not issued a detention order. Also that he cannot vouch for the fact of arrest of the corpus as the files are destroyed after 5 years.

The Secretary, Ministry of Defence and the IGP have been asked to explain as to how the letters marked P1 and Pw came to be issued in view of the affidavits filed before this Court by 2R that the corpus has not been arrested by them. The Secretary, Ministry of Defence and the IGP stated that they in fact had issued P1 and P2 but that they were issued in the ordinary course without checking in the first instance before the issue of the letters whether such persons are on detention orders.

Further the Register maintained for the period in question could not be produced for the reason that they have been destroyed after 5 years. It is difficult to believe that the Secretary, Ministry of Defence would have issued letter P1 to visit persons in custody without verifying whether in fact such persons are being held in custody on detention orders. We are unable to accept his explanation that they issued P1 and P2 without any verification regarding the truth or otherwise of the contents of P1 and P2.

The evidence led on behalf of the petitioner has been corroborated by two persons namely, Kandavanam Sogi Sivamaheswaran, Prison guard and Arsaratnam Mahendran an architect who were arrested along with the corpus. Although the 2nd respondent tried to impress upon the Court that they have made a mistake, the evidence of the petitioner corroborated by the witness referred to above supports the issue of P1 and P2. Therefore, we are unable to accept the explanation given by the Secretary, Ministry of Defence.

Thus the Court holds that the evidence of the petitioner is amply corroborated by two independent witnesses and P1 and P2 issued by the Secretary, Ministry of Defence and IGP. We are of the view that the petitioner has proved beyond reasonable doubt that the corpus was arrested on the relevant date by the 1st respondent and thereby the 2nd respondent is vicariously liable as the commander of the army. As the 1st respondent is dead, we are not making any order against the 1st respondent. We agree with the findings of the learned Magistrate and we hold that the 2nd respondent is vicariously liable in his official capacity for the arrest and subsequent disappearance of the corpus.

As far as the corpus is concerned, he is a professional and has high academic qualifications including a MSc. Taking all these matters into consideration, we are of the view that the 2nd respondent should pay exemplary costs in a sum of Rs.100, 000. This amount should be paid to the petitioner on or before 05.04.2001. If this amount is not paid in full, further action will be considered in the matter of contempt of Court.

We also direct the Registrar of this Court to forward copies of the proceedings recorded in the Magistrateís Court together with a copy of this order to the Commander of Army and Secretary, Ministry of Defence who are hereby directed to consider the recorded as information of the commission of a cognizable offence is disclosed, they will further take steps to conduct proper investigations and to take steps according to Law. The Registrar is also directed to forward the proceedings with this judgment to the Hon. Attorney General for appropriate action to be taken by him. Petition of the petitioner is allowed with costs to be paid by the 2nd respondent.