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The collective conscience of the silent majority

By Kishali Pinto Jayawardene

Scrutinizing the Tissainayagam judgment this week indicates two primary points that define current parameters in regard to freedom of expression in general and freedom of the press in particular in Sri Lanka.

First, the government used the standard of the 'ordinary or reasonable man' to contend that the writings in issue constituted an incitement to communal hatred among communities or racial and religious groups, as prohibited by Section 2 (1) (h) of the Prevention of Terrorism Act, No 48 of 1979 (as amended) read with Sections 113(1) and 102 of the Penal Code. This argument was accepted by court citing cases on defamation decided by the English courts in 1940 and 1971 applicable primarily to the context of individual reputation being affected. The impugned writings in the little known North Eastern Monthly alleged in July 2006 that the government was not offering adequate protection to the Tamils in the North with the state security forces being the main perpetrator of killings and in November 2006, that the population of Vaharai is being depopulated and starved by the government refusing them food as well as medicines and fuel.

The 'ordinary man' standard

The truth of the second allegation in particular was disproved by the evidence of an officer of the Human Rights Commission, called as a witness for the defence who later turned hostile. The credibility of this allegation is, of course, highly contested. Regardless, the applicability of standards measuring defamation to an offence as vaguely defined as incitement to communal hatred between communities or racial and religious groups, (which rule incidentally would find many of the government's own propagandists guilty in several respects), will undoubtedly be pressed in appeal. The application of this general standard to the readership of a little known magazine read not by the general citizenry but by a selective category is an allied question. Though a Buddhist priest, lawyers and a politician were called as witnesses for the defence to testify that the writings could not be construed as incitement to communal hatred, these opinions were dismissed on the basis that the individuals in question subscribed to a particular opinion in regard to the war and did not reflect the 'ordinary man' standard. The contrary (and apparently single) opinion of the defence's hostile witness was accepted.

Conviction upon a confession

Secondly, the conviction of the accused under Emergency Regulations on the third charge of obtaining money from an LTTE source to run this little known magazine, rested primarily on a confession. This was alleged by Tissainayagam to have been coerced. The trial judge also used the fact that two payments of Rs 50,000 each had been deposited by anonymous persons into the relevant bank account in March and April 2007 to mean 'invariably' that the depositers were not readers or subscribers but rather terrorist sources.

This conviction on the third charge also raises some relevant points of discussion. As has been long critiqued in similar cases, the accused has the burden to prove the fact of coercion under the PTA and relevant emergency regulations, virtually an impossible task. In this case, it was alleged that the purported confession was, in any event, tampered with which allegation was not accepted by the trial judge. Interestingly, the case law cited in this respect includes the late Justice Mark Fernando's individual opinion in Nagamani Theivendran v. the Attorney General (SC Appeal No 65/2000, SCM 16.10.2002 separate judicial opinions by Justices Ismail, Fernando and Wigneswaran) in which the undoubtedly conservative view was taken (as contrasted to Justice Fernando's general thinking in regard to the protection of individual liberties), that a conviction upon an uncorroborated confession under the PTA or any other law was lawful and proper.

The 'manufacturing' of confessions

Though only Justice Fernando's opinion is cited by the trial judge in the Tissainayagam judgment, Theivendran's Case however exhibited a sharp division of judicial opinion on this point between Justice Fernando and Justice CV Wigneswaran who wrote a separate 26 page opinion contending strongly that 'the general civilised law of the country frowns upon the admission as evidence, of confessions to police officers' given the fact that (as remarked previously) the dangers of 'confessions being 'manufactured' in police stations through physical or mental intimidation. It was also observed that such admittance by a 'politically motivated law, (ie the PTA), was contrary to Sri Lanka's obligations under the International Covenant on Civil and Political Rights (ICCPR).

Apart from the division of judicial opinion on this point, both judges agreed with Justice Ismail that, the reliability of a confession must be most rigorously tested against the evidence and surrounding circumstances. In that particular case, the confession was held as not being 'sufficient and trustworthy' to convict the accused. The Court of Appeal, which had affirmed the High Court's conviction based solely on a confession, relying on its earlier precedent in the Singarasa Case, was held to be in error. While the question as to whether this test was satisfied in the Tissainayagam Case remains to be decided on appeal, this most recent High Court judgment highlights anew the importance of a definitive judicial ruling settling the applicable law on this point.

Calling for reconciliation

This judgment should be subjected to more detailed scrutiny which is not possible in this column due to space constraints. However, from a wider perspective, this pattern of the use of anti terrorism law as an instrument of media repression needs to stop now. We saw similar patterns in regard to the use of criminal defamation provisions which was halted only with the repeal of those provisions. Surely we have learnt from those mistakes? A radical change needs to take place in our thinking in regard to the need for reconciliation after conflict. The collective conscience of the silent majority in this country compels this.

courtesy: The Sunday Times

2 Comments

Tissainayagam is a Tamil and an English journalist.In Sri Lanka any Tamil journalist is a traitor if he writes bringing out true facts is straight away branded as a Tiger supporter and a Terrorist. The Terrorist game has gone too far and the consequences are firing back, that is the one going to bring Eelam separate state. Proscribing the LTTE as terrorist is an adventure that led to the genocide of the Tamils. Sri Lankan diplomats who are fluent liars are not now taken seriously in the wide world. SL Govt. can't afford to free Tissainayagam, you know well once he is free what he would write as a true and genuine talented writer.

Posted by: N.Balasubramaniam | September 14, 2009 03:01 AM

According to PTA it is an offense to

‎‘by words either spoken or intended to be read or by signs or by visible representations or ‎otherwise causes or intends to cause commission of acts of violence or religious, racial or ‎communal disharmony or feelings of ill-will or hostility between different communities or racial ‎or religious groups;’‎

The relevant statements referred as evidence of inciting communal hatred ‎

‎1.‎ Providing security to Tamils now, will define north eastern politics of the future. ‎
‎2.‎ It is fairly obvious that the government is not going to offer them any protection. In fact it ‎is the state security forces that are the main perpetrator of the killings. ‎
‎3.‎ Such offensives against the civilians are accompanied by attempts to starve the ‎population by refusing them food as well as medicine and fuel with the hope of driving out ‎the people out of Vakarai and depopulating it. As this story is being written, Vakarai is ‎being subject to intense shelling and aerial bombardment.‎

These are in fact general statements made regarding the situation of people in the war torn ‎areas with no direct connotation to arouse racial or religious hatred or feelings in the ordinary ‎sense of the word. In fact statement 1 and 2 are quite plausible in a war situation. Statement ‎‎3 too is quite possible during open hostilities where people may have no access to basic ‎necessities though not a deliberate act on the part of the armed forces. These statements ‎appear to more of an act to coerce the government to halt offensive against tamil areas than ‎an attempt incite racial hatred. ‎

Even though people like Vasudeva Nanayakkara, Manouri Muttettuwegama and Ven ‎Baddegama Samitha gave wittness that these statements do not constitute an incitement to ‎hatred, the court rejected their evidence and decided they did not come within the definition of ‎the ‘ordinary man’. However the court accepted the statement of the Deputy Chairman of the ‎Human Rights Council to be an ‘ordinary man’. ‎

The witness stated that he had been visiting the Vakarai area sometime in 2006 and meeting ‎the divisional secretary for the area who had stated that the World Food Programme had ‎been distributing food through this divisional secretary and that there were government ‎hospitals and governments doctors even though it was an LTTE controlled area. This witness ‎had also said that he had met LTTE commanders of the areas as well. The statement of this ‎witness refers to what was purported to have been told to him by the divisional secretary ‎sometime in 2006 and hence does not constitute direct evidence of the ground situation in the ‎war areas in November 2006 when this article was written.‎

As stated by in many view points the stand taken by the defence lawyer seems to be weak, ‎even to the extent of being suspect. This is especially with regard to not making timely ‎objections to the confession made by Tissanayagam. It is not known if he was subject to ‎threats as have been lawyers in other similar cases. It was also reported that the Security ‎detail of the Judge was missing on the day of the judgement when she set out to courts. Such ‎is the situation in the country where PTA is seen as ‘due process of law’. Law it may be but in ‎reality an aberration of Justice and Universal Human Rights.‎

Posted by: Citizen | September 14, 2009 10:14 PM

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