Confession voluntary or coerced, Court to rule in Tissainayagam case

[TamilNet, Sunday, 23 November 2008, 17:35 GMT]
Oral submissions for the voir dire inquiry in the case against a senior journalist J.S.Tissanayagam held in detention for more than eight months were concluded Friday in Colombo High Court under the Prevention of Terrorism Act (PTA), where State Counsel Sudarshana De Silva and Defense Counsel Anil Silva argued to establish whether the confession made by the journalist to the Terrorist Investigation Division (TID) of the Sri Lanka Police was voluntary or made under threat and duress, legal sources in Colombo said.

Legal sources said, the Prosecution placed four key arguments to support their position that confession was voluntary. First, the Prosecution said that the Defense did not present a coherent description of how the confession was taken. According to the Prosecution, the Defense told the Court that the confession was taken in front of the OIC in the presence of officer Razeek, later changed their story to say Razeek forced the confession in the ASP Ranasinghe’s room, changing yet again that the confession was coerced in the room where the accused (Tissainayagam) was being held.

Secondly, Prosecution recalled Tissainayagam’s testimony that he was afraid of going blind if the physical threats by Zubair and Razeek were carried out. Prosecution said Tissainayagam was clearly lying, since he has made several arduous journeys to uncleared areas without having concern for his eye condition.

Third, Prosecution cast doubts on Tissainayagam’s veracity on his testimony on witnessing his colleague Jasikaran being beaten up. Whereas, Tissainayagam said he has seen Jasikaran crying on the 9th of May, the Judicial Medical Officer (JMO) Mayurathan’s testimony indicated that he wounds on Jasikaran could have occurred after the 11th May.

Lastly, the Prosecution questioned why the accused never complained of any threats to him while he was in TID’s custody, and why he did not include in the confession any indication of “duress,” when he could easily have taken advantage of the nuances in different Tamil dialects, and inserted words to that effect without alerting Razeek who is familiar with only Muslim dialect.

Defense Counsel, responding, said as a matter of law, the defense has only to establish that there is “appearance” that the confession was not voluntary, and that there is no need to prove “beyond any reasonable doubt.” This lower burden on the defense flows from the Sri Lanka jurisprudence, where “confessions” are not admitted under normal law, but only under the PTA and Emergency Regulations, where the doctrine of self-incrimination is denied to the accused, the Defense Counsel said, according to legal sources in Colombo.

Police evidence, especially confessions given in custody, as the Court said in the case of the Queen Vs. Gnanaseela Thero, “what goes on beyond the closed doors of a place of detention…the court is not able to determine,” a presumption of suspicion on the voluntary nature of any confession, the Defense Counsel said.

Defense argued that since the accused always have to return to the same place of detention it adds further doubts on the voluntary nature of the confession. Pointing out the ruling in Columbo v. the State of Connecticut, where the Court said “the prisoner knows that he will be held at the mercy of police without proper judicial oversight and runs the risks of the suspension of the ordinary law of the land and the unusual length of custody,” the Defense argued that in such circumstances the confessions cannot be voluntary. Defense further pointed out that Tissainayagam was given a bed and pillow at the beginning, and even these meager comforts were taken away later, and argued that these acts are inducements to persuade the detainee to say as those detaining him would wish him to say, in order to avoid any evil that could come to him.

Tissainayagam was held with the Sri Lanka Intelligence unit where detainees were brought regularly and assaulted, and threat to Tissainayagam’s eyesight was a clear and present danger, the Defense said. The TID was aware of this condition as they escorted him to the Eye Hospital for check, and have used this to threaten him, the Defense added. The Court should view with suspicion on the voluntary nature of the “confession” obtained in an environment of imminent threat to health of the accused, and when the defendant was not provided access to lawyers, the Defense argued.

The Defense Counsel put forward two arguments that cast further doubts on the date of JMO’s reports on Jasikaran, in addition to pointing out that the Prosecution has refused to admit the JMO’s report where Jasikaran’s torture and date were recorded. First, while Jasikaran’s JMO Dr Mayurathan, who was brought as a witness, first said that Jasikaran’s assault could have taken place on the 9th, and his observation after examining Jasikaran on the 27th that the wounds were probably 2 weeks old. Dr Mayurathan changed his stand after looking at Dr Juzar’s report to tell the Court that the wounds could only have happened after the 11th. Besides, the Court has no proof that Dr Juzar, infact, examined Jasikaran, as he was not called as a witness, the Defense said, casting doubt on the JMO report and conclusions.

Secondly, Jasikaran, when he appeared at the Court on the 27th, told the Court that he was tortured on the 9th of May. This, without any evidence to the contrary, substantiates Tissainayagam’s statement on the date of witnessing Jasikaran’s wounds, the Defense Counsel contended.

Rebutting Prosecution argument on where the confession was recorded, the Defense Council pointed to the Court that Defense has always said that the “confession” was never written in front of an ASP, violating the rules of PTA. The ASP’s claim that he read a gazetted notification to Tissainaygam and that Tissainayagam had signed this gazette notification saying he understood it, is probably not true, as this gazette with Tissainayagam’s signature had never been submitted to court. No such gazette with a signature of Tissainayagam exists, the Defense Council said, adding that the ASP had misled the Court said the Defense.

The Defense also said that key witnesses to the ASP Ranasinghe’s statement that the ASP was present on the 9th when Tissainayagam ‘s statement was written, the typist on the 9th and the translator Nazeem were not called. If they had been called they should have collaborated that the ASP was present on the 9th. The fact that they were available, listed as witnesses, and not called leads the Defense to believe that, as in the case of the Queen Vs. Gnanaseela Thero, the calling of these witnesses would have been detrimental to the prosecution. The prosecution said that it thought it was a waste of the court’s time to call other witnesses, but if that was the case why did the prosecution call the typist who was there on the 7th and not on the crucial day of the 9th when the statement in question was actually written, asked the Defense.

The Court is set to issue its ruling on the 5th December, legal sources said.

In a recent development prison authorities of Colombo Remand Prison (CRP) Tuesday evening transferred 74 Tamil political prisoners, including senior journalist J.S.Tissanayagam to Colombo Magazine Prison, placing them with hardcore criminal prisoners from South. Relatives say they are reminded of the massacre of more than 50 Tamil political prisoners inside the nearby Welikada prison in July 1983 by prison guards and fellow Sinhala prisoners.

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