Tissa arrest "illegal" under CFA provisions - Counsel

[TamilNet, Wednesday, 10 September 2008, 05:41 GMT]
Mr Anil Silva, the Counsel for senior Tamil journalist Tissainayagam, said during the hearing that the under the provision of the Cease Fire Agreement (CFA) the Government of Sri Lanka gave undertaking not to search or arrest as authorized by the Prevention of Terrorism Act (PTA), and the Sri Lanka has reneged on this promise. Mr Silva further urged the Attorney General' department to withdraw the indictment as this action would discredit the Government for reneging on the provisions of the CFA, legal sources in Colombo said.

The Counsel added that the second clause of the CFA agreement precludes search and arrest under the PTA, and the court had even withdrawn PTA cases under this CFA provision.

Citing Government of Hong Kong v. Hu Jin Chi case, Mr Silva said in the court that under international law courts have held that "Once a public undertaking has been given the state cannot go back on such an undertaking during that period that the undertaking was given."

The counsel cautioned the Attorney General’s department that indictment relates to the period, 2006, when such an undertaking was given, and therefore, the counsel should withdraw the indictment.

Counsel for the state Rohantha Abeysuriya said that he did not know of any such undertaking, and the CFA was "annulled" after Lakshman Kadirgamar’s killing in 2005 and the country went back to its Emergency Regulations.

Mr. Silva reiterated that the government had continued to observe the agreement, and abrogated the agreement on in January 2008, after giving two weeks notice, legal sources said.

Tissainayagam’s counsel also objected to the vagueness of the charges in the indictment, and pointed out that the gazette notification that underlied one of their charges was non existent.

“The charges are very vague. It states that he is charged with committing an offence as well as intending to commit the offence. Secondly he is charged with using words meant to be read or signs. It can’t be one or the other. The charge has to be clear," said Mr. Anil Silva counsel for Tissainayagam.

"Furthermore, the third charge in the indictment is said to be under Emergency Regulation 7 of December 2006 published in Gazette No 1474/3 of the Democratic Socialist Republic. I have not seen such a notice,” added Mr. Silva.

Counsel Abeysuriya also thanked the defence counsel for pointing out the mistakes in the indictment and moved to amend it.

The Judge allowed the amendments, and cautioned that no new "evidence" should be added.

The State amended the charges to strike off the words "bringing discredit to the government," and "collecting money from NGO’s."

State Counsel Abeysuriya said all the ills in Sri Lanka are because of NGO’s.

The words "editing the North Eastern Monthly" were added to the "printing and publication of the magazine" which were already present. The words "Collecting money and using money for the editing, printing and publication of the North Eastern Monthly" were also inserted as part of the amendements. The date of gazette notification was also duly amended to 1473/4 and 1473/5.

The State added two new witnesses one TID officer Nasim and the JMO Dr. Wijerathne. State Counsel said that the case rests on Tissainayagam’s confession and that is why there is no need for more witnesses, legal sources said.

ASP. S. Ranasinghe, giving evidence, stated that Tissainayagam had voluntary confessed in Tamil, with the help of the new witness TID officer Naseem. The Defence counsel pointed out that although case rests on the veracity of this confession, the state has only now seen necessary to add officer Naseem as a witness.

Tissainayagam’s counsel held that this statement was not voluntary. Cross examination of ASP Ranasinghe is to begin on the 18th of September, according to legal sources.

Rohantha Abeysuriya and Sudarshana De Silva appeared for the State. Anil Silva, Nalin Laduwahetty, M.A Sumanthiran, Sharmain Gunethilleke and Namal Perera appeared for Tissainayagam.

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