AG will not appeal in Mylanthanai case

By: a Staff Crrespondent

Attorney General K. Kamalasabayson will not appeal against the verdict in the Mylanthanai massacre case due to a legal convention that dissuades appeals with regard to acquittals by jury, informed sources told the Northeastern Herald.

The decision was taken despite lawyers appearing for the aggrieved parties, human rights activists and parliamentarians lobbying the AG to appeal against the verdict because there was a clear miscarriage of justice.

The Mylanthanai massacre occurred in August 1992 when soldiers of the Gajaba Regiment stationed in Punani SLA camp went on the rampage at Mylanthanai village in the Batticaloa District apparently in retaliation for the deaths of Major General Denzil Kobbekaduwa and other military top brass in Jaffna on the previous day.

The trial came up in the Colombo High Court 10 years after the incident. Eighteen soldiers were identified by the villagers in identification parades and stood trial. In deference to the wishes of the defence, court allowed for a Sinhala-speaking jury despite the witnesses being Tamil-speakers.

The jury gave a unanimous verdict acquitting the 18 accused soldiers. The Judge M. Sriskandarajah disagreeing with the verdict asked the jury to reconsider it. The jury however returned the same verdict once again, thereby giving the judge no other option but to acquit the suspects.

Sources said they were disappointed by the decision by the AG. “If the convention was healthy one I can understand the AG adhering to it, but in this case it is not,” the source said.

Lawyers said meanwhile that despite convention dictating against appeals in cases where the jury favoured acquittal, provisions of the law indicated otherwise. According to Section 337 (1) of the Criminal Procedure Code, “In an appeal from an order of acquittal, the Court of Appeal may reverse such an order and direct the accused to be retried or find him of the same or different offence of which the accused could have been found on the indictment and pass sentence on him according to the law.”

Section 15 of the Judicature Act states, “The Attorney General may appeal to the Court of Appeal from an order of acquittal by a High Court on a question of law alone in a trial with or without a jury.”

Sources said in this matter though the AG could appeal on a question of law he had not considered it but preferred to cite a convention to refrain from appealing. They questioned the wisdom of relying on conventions in important and sensitive cases like Mylanthanai, which fell into the category of a massacre and thereby a crime against humanity.

“This is a setback for the whole judicial system in the country and people have lost faith in that institution,” said a human rights lawyer who wished to remain anonymous. “This is a clear reflection of the indifference of the AG’ Department to prosecute members of the armed forces in cases involving ethnicity,” he continued.

Ethnic considerations came to the fore in every stage of the trial. When the inquiry was held soon after the incident in the Batticaloa Magistrate’s Courts lawyers appearing for the defence requested it be shifted to the Polonnaruwa. Counsel appearing for the defence was of the opinion it would be a security threat for the accused soldiers who are Sinhala-speaking, to be present in the Batticaloa Courts that is in a Tamil-majority area.

Though the counsel appearing for the victims went to the Court of Appeal against this decision, their argument that the witnesses were Tamil-speaking and had to undergo not only a security threat to go the Polonnaruwa in the Sinhala-majority area, but also legal provisions laid down the Batticaloa Magistrate’s Court had priority over other courts because the crime was committed within the jurisdiction of the Batticaloa courts, were rejected by the Court of Appeal.

In the wake of the verdict by the jury in the Colombo High Court (to which the trial was eventually transferred) two delegations of lawyers met the AG. The first comprising Desmond Fernando P.C., and attorneys-at-law Chandrapala Kumarage and K. S. Ratnavel, handed over a memorandum to the AG. The latter delegation included Ranavel and S. Sivaloganathan, retired state counsel.

Member of Parliament Joseph Parajasingham (TNA-Batticaloa District) also lobbied by sending the AG a fax requesting him to appeal against the verdict. D. Siddharthan, MP (PLOTE- Vanni District) spoke about the feeling of mistrust the Mylanthanai order had bred in Tamils.

“The AG’s department has let down the Tamils. The poor quality of justice only strengthens the hands of the LTTE and justifies their introducing courts in their areas,” said the human rights activist.

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