Sentence to Tissainayagam extra-judicial: HR lawyer

[TamilNet, Monday, 31 August 2009, 23:42 GMT]
The sentence of 20-year rigorous imprisonment to J.S. Tissanayagam on Monday mark a sad day for journalists and those who believe in the ’freedom of expression’ all over the world, says Deputy Chairperson of Northeast Secretariat on Human Rights (NESoHR), K Sivapalan, an Atterney-at-Law from Trincomalee, in whose opinion this is an extra-judicial way to punish people. ”The provisions of the PTA are not in conformity with the International Criminal Law especially the ’confession’ being admitted in evidence agaist the accused and with regard to the burden of proof.UNHRC requested the GoSL to repeal or amend many of the provisions which were not in conformity. However this was not followed by them on the basis that it was an erosion of the sovereignty of Sri Lanka,” Mr. Sivapalan, now exiled in Norway, said.

Full text of the statement by Lawyer Sivapalan follows:

Today is a sad day for the journalists and those who believe in the ’freedom of expression’ all over the world. Journalist J.S.Tissanayagam, Editor of Northeastern Herald Monthly and the online magazine ’outreach.com , has bee found guilty under the draconian Prevention of Terrorism Act (PTA) by the Colombo High Court and sentenced to 20 years rigorous imprisonment.

This has come as a shock hot on the heels of the Video clipping published by the ’Journalists for Democracy in Sri Lanka’of the extra- judicial killing of Tamils in Sri Lanka during the war said to be by the Sri Lankan Army personnel.

Tissanayagam was not arrested on the basis of any ongoing investigation against him. He was arrested at the Police station when he went to find out as to why his Printers Jaseetharan and his wife Valarmathy were taken to the Police Station. It has been held in the case of , Pathmanathan-Vs-Officer-In-Charge of TID Vavuniya, by the Sri Lankan Courts, that it is wrong to arrest a person and then search for evidence to indict him. This seems to be exactly the case here.

Tissanayagam was indicted in Court after holding him in detention under the Emergency Regulations (EMR) /PTA for well over six months. It is pertinent to mention here that in many cases persons are detained without indicting them or releasing them for long period, upto 18 months using the powers under the EMR/PTA said to be on suspicion and are freed later when a Fundamental Rights Application is filed in the Supreme Court under Article 126 of the Constitution of the Democratic Socialist Republic of Sri Lanka. This is used as an extra-judicial way to punish people.

Seldom one gets any ’redress’ from the government / Police as the applicants, who are often the kith and kin of the detained persons are satisfied once the detainee is released without any further action. Further in 99 percent of these cases the detainees are tortured in order to obtain a ’confession’ from them, which is admissible in evidence in cases filed under EMR/PTA.

The Members of the United Nations Human Rights Committee(UNHRC) in the matter of Nallaratnam Singarasa on a communication by him against the Government of Sri Lanka (GOSL) expressed the view that many of the provisions of the PTA are not in conformity with the International Criminal Law especially the ’confession’ being admitted in evidence agaist the accused and with regard to the burden of proof.UNHRC requested the GOSL to repeal or amend many of the provisions which were not in conformity.

However this was not followed by them on the basis that it was an erosion of the sovereignty of Sri Lanka. Later on an application filed on behalf of Nallaratnam Singarasa, in the Supreme Court, S.C.Spl (L.A) No: 182/99,the then Chief Justice of Sri Lanka, Sarath N de Silva held that the accession to the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) which enabled individuals from Sri Lanka to take their cases to the UNHRC was in itself in excess of the powers conferred on the President of Sri Lanka under Article 33 (f)of the Constitution. That was the end of the matter.

In the case of Mariyadas, on an appeal, Learned Justice Hector Seneviratne Yapa held that the standard of proof required of an accused in a Preliminary Inquiry (Voire Dire Examination) held to decide upon the admissibility of the so called confession of the accused is lesser than ,’beyond all reasonable doubt’ expected of a prosecution in a criminal case. Mere doubt created in the mind of the Judge as to whether ’confession’ was voluntary, was enough in order not to admit the so called confession in evidence.

It would seem that this has not been followed in this case against Tissanayagam. Further, it is to be noted that Tissa has been assisting the Sinhala suspects belonging to JVP when they were being viciously targeted and killed by the S.L.Army and police. What he has written in the columns of Northeastern Herald Monthly was not considered to be material fit enough to bring disharmony between the communities for a very long time but was culled out now in order to find something to indict him.

In the same vein the poisonous racism spit out by many of the Sinhla politicians in their speeches would entail all of them to be found guilty if brought before court for creating disharmony between the communities.

In any event ’rigorous imprisonment’ is something for murderers and hardcore criminals and certainly not for journalists of the like of Tissainayagam without previous conviction of any sort.

Leader of an Independent group contesting the Jaffna Municipality Elections recently said in an Interview that people in Jaffna open their mouths only to eat.

With this sentence meted out to Tissanayagam only people of the calibre of Lasantha Wickramatunga may venture to put their pen to paper. In fact those who brought this prosecution against Tissainayagam might have put to rest freedom of the press and democracy in the Democratic Socialist Republic of Sri Lanka.

Chronology: