Sri Lanka Court Upholds Alleged Confession by Tissainayagam- IFJ

 

A Sri Lankan court has ruled that an alleged confession made by senior Tamil journalist J.S. Tissainayagam while detained by the Terrorism Investigation Division (TID) was voluntary and admissible as evidence in his trial on terrorism charges. The International Federation of Journalists
(IFJ) is informed however that Tissainayagam was forced to make a statement to TID under extreme duress.

Giving evidence in Colombo’s High Court on November 5, Tissainayagam denied making a voluntary confession.

After being detained by the TID of the Sri Lankan police on March 7 this year, Tissainayagam was held without charge or explanation for more than 150 days. It is alleged that Tissainayagam, the editor of an online newspaper, OutreachSL.com, made a voluntary confession during this time.

However, Tissainayagam was reportedly subjected to duress and denied private access to lawyers. Court hearings during this period were postponed arbitrarily. The Supreme Court denied Tissainayagam’s lawyers a fundamental rights petition for interim relief, submitted on the grounds of arbitrary arrest, torture, discrimination on the basis of ethnicity and a denial of equality of protection under law.

Indictments against Tissainayagam and his two colleagues, N. Jesiharan and his partner Valarmathi, were filed before the High Court of Colombo on August 25. The three were charged under the Prevention of Terrorism Act (PTA), a draconian law introduced in 1979 as an ostensibly temporary measure.

The IFJ and other international press freedom organisations are extremely concerned for the safety and welfare of the three. Tissainayagam and Jesiharan, the owner of E-Kwality Printers, were moved from a remand prison to the notoriously dangerous Magazine Prison in Colombo on November 17, according to the Free Media Movement (FMM), an IFJ affiliate.

The continuation of the trial against Tissainayagam has reportedly been postponed until December 18.

The IFJ joins the FMM in calling for fair judicial process to be applied to all aspects of the continuation of Tissainayagam’s trial, including the procurement of his safety and protection in Magazine Prison.

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journalists in custody – JASIKARAN and VALARMATHI

Writer and publisher N. Jasikaran and his wife Valarmathi were taken in to custody by the Terrorist Investigation Department (TID), par of the Sri Lankan police force, on the 6th March 2008.
Their colleague  senior journalist Tissainayagam was arrested on 7th March after he went to the TID to inquire about Jasikaran and Valarmathi.
Jasikaran and Valarmathi, along with Tissainayagam are directors of E-Kwality Printers, which published the North Eastern Monthly magazine. Approximately one month prior to their arrests, they had commenced work on the website, outreachSL.com.
While the recent international advocacy focus has been on Tissainayagam, threats against Jasikaran’s family highlight a need to urgently increase awareness of the situation regarding Jasikaran and his wife.
Timeline Jasikaran and Valamrathi
• 6th March – Taken in by the TID – held under suspicious of supporting terrorism
• 11th May – Police claim Jasikaran made his confession
• 27th May – Jasikaran produced before Magistrate’s Court. His lawyer tells the judge that Jasikaran has been tortured in custody. Judge orders JMO to assess claim. Afterwards, Jasikaran was returned to the same place of custody, where he was tortured again.
• 13th June – Jasikaran complains to the Magistrate Court that he has been assaulted. JMO ordered to assess. After the assessment, JMO finds that Jasikaran’s injuries are consistent with assault.
• 11th August – Jasikaran is indicted under the Prevention of Terrorism Act. His wife Valarmathi is charged with ‘aiding and abetting’ terrorism.
• 10th December – Hearing to determine if  Jasikaran’s confession was voluntary.

Recent Developments – Nov 26th
The Free Media Movement (FMM) has reported that Jasikaran’s family received a number of threatening phone calls on November 25 and 26. The caller has demanded a ransom to ensure the safety of Jasikaran in prison. FMM has put out an urgent call for the protection of the family and Jasikaran.
( by IN)

Sri Lanka detained journalist says threatened daily; quizzed in court over writing

Writer’s Trial: 
  
Nov 16, 2008 (LBO) – A Sri Lankan journalist who had been detained for over eight months had been questioned about what he wrote, and had also revealed to court that he had been repeatedly threatened, a media report said.
 
Senior journalist J S Tissainayagam’s case had been taken up Friday in Colombo High Court but the judicial medical officer summoned to give evidence was not present, The Sunday Times newspaper reported.

Earlier in the week Tissainayagam had testified that he had a serious eye condition, where an accident when he was 18 had caused a detached retina in both eyes and he had 50 percent vision.

Doctors had advised him that a blow to the head could make the condition recur.

He said officers of Sri Lanka’s terrorist investigation division who was holding him had threatened him saying he would be “beaten up like other detainees” and that he would go blind if the officers beat him, the report said.

He said he was threatened on a daily basis.

In cross-examination, a government lawyer had produced several documents and statements that. Tissainayagam was said to have signed on March 7, the day he was detained.

Tissainayagam had denied that it was his signature on the documents, saying he signed in the English language and therefore the signature on the documents could not be his.
 
Tissainayagam had told court on May 9 after he had seen another arrested colleague being tortured, and had been told the same would happen to him. The prosecution’s position was that he was lying, the report said.

The defence had asked for a medical officer who had reported on it to be called to court.

A government lawyer had questioned whether he had visited a Tamil Tiger controlled area with the permission of the Government and questioned him on an article he had written in November 2007 and asked him to read out portions of it.

Tissainayagam had read out the article and said he stood by it and added that as a journalist he had expressed his views, The Sunday Times said.

The International Federation of Journalists (IFJ) had launched a campaign to free Tissainayagam saying it was a trial on the freedom of expression.

Tissa faces daily threats, fears loss of eyesight

 (Sunday Times 16th Nov)
When the case of senior journalist J. S. Tissainayagam who has been detained for more than eight months was taken up last Friday in the Colombo High Court, the Judicial Medical Officer summoned to give evidence in the case was not present.

Summons was re-issued on the JMO to be present when the case is next taken up on Tuesday.
Earlier in the week the testimony of Mr. Tissainayagam was concluded. Mr. Tissainayagam testified that he had a serious eye condition. He said that he had degenerative myopia from the age of seven and a serious accident when he was 18 led him to have detached retina in both eyes.

 
He said after the operation he had only about 50% vision in both eyes and that doctors had advised him to be very careful that any sudden movement or fall or blow to the head could make the condition recur and he could lose his eyesight. Mr. Tissainayagam said had informed the Terrorist Investigation Division (TID) officers about his eye condition very early on in his detention.

He said, however, TID officers had threatened him saying he would be beaten up like the other detainees and therefore he was very afraid that he would go blind if the TID officers did beat him. He said he was threatened on a daily basis.

In cross-examination, State Counsel produced several documents and statements that Mr. Tissainayagam was said to have signed on March 7, the day he was detained by the TID. Mr. Tissainayagam denied that it was his signature on the documents clearly stating that he signed in the English language and therefore the signature on the documents could not be his.

State Counsel also questioned him as to whether he had visited the Wanni with the permission of the Government. Mr. Tissainayagam answered in the affirmative that he had visited the Wanni as a journalist. The State also questioned him on articles he had written in November 2007 after LTTE political head S. P. Thamilselvan’s death and asked him to read out portions of the article. Mr. Tissainayagam did read out his article and he said he stood by it and added as a journalist he had expressed his views.

Mr. Tissainayagam also said that on May 9 after he had seen his colleague Jasikaran being tortured, he had been told the same would happen to him. That was why he wrote down what was dictated to him by a TID officer, he said.

The prosecution’s position was that Mr. Tissainayagam was lying on this point. However when the defence attempted to mark the JMO’s report detailing Jasikaran’s torture on May 9 the prosecution objected and the objection was sustained. Therefore the defence asked for the JMO who had given the report to be called as a witness. The prosecution then said that it too would be calling other JMOs who had seen Jasikaran.

The trial will resume on Tuesday. Counsel Anil Silva with M.A. Sumanthiran, Nalin Ladduwahetty and Ms. Charmaine Gunaratne appeared for journalist Tissainayagam. State Counsel Sudarshana de Silva with Miss Samalka Samarasinghe appeared for the TID.

Meanwhile, the International Federation of Journalists (IFJ) had launched a campaign in September to end Mr. Tissainayagam’s detention as it said the case was a trial of the freedom of expression. As a part of that campaign they had produced a video depicting Mr. Tissainayagam going to the Magistrate’s Court and the show of solidarity witnessed outside the Magistrate’s Courts. However two weeks ago the video clip on UTube had been blocked by unknown persons.

Hearing of Tissainayagam’s case postponed

 

    
By T. Farook Thajudeen (Daily Mirror)
The hearing of senior journalist Jeyaprakash Sittampalam Tissainayagam’s voir dire inquiry was put off for October 2 and 6 by the Colombo High Court Judge Ms. Deepali Wijesundara as the scheduled witness Assistant Superintendent of Police Ranasinghe of the TID was ill and unable to attend court.

At the outset of yesterday’s hearing the Senior State Counsel Rohantha Abeysuriya informed court that the prosecution witness ASP Ranasinghe of the Terrorist Investigation Division (TID) was ill and would not be able to attend court to give evidence for another four days and requested that voir dire inquiry be fixed on another date

Mr. Anil Silva, defence counsel queried whether a medical certificate was being produced.

In this case J.S. Tissainayagam was indicted for an offence said to have been committed during the period between June, 2006 and June, 2007. He was charged with unknown persons committed an offence or abetted the commission of an offence which intends to cause the commission of acts of violence or racial or communal disharmony through the printing or distribution of a North Eastern Monthly magazine.

He was also charged for committing an offence by contributing or collecting or obtaining information or donating funds for the purpose of terrorism through the collection of funds from the magazine, which is an offence punishable under the Emergency Regulations.

Senior State Counsel Rohantha Abeysuriya appeared for the prosecution

Mr. Anil Silva with M.A. Sumanthiran, Sharman Gunasekera , Dhanaraj Samarakoon and Suresh Fernando appeared for the accused.

AHRC on Tissanayagam trial

Friday, 12 September 2008 17:35
 
Abandoning the absolute prohibition against the admissibility of confessions in criminal trials is similar to permitting stabbing in a boxing ring.
This remark by the Asian Human Rights Commission comes in the wake of the indictment served against journalist J.S. Tissanayagam.
AHRC said in a statement the Tissanayagam case raises a fundamental question about the different kinds of criminal trials offered to the accused under the Prevention of Terrorism Act, and Emergency Regulations as against the accused in regular criminal trials.
Under Sri Lankan law, according to the Evidence Ordinance, any statement amounting to a confession made to a public officer is not admissible at any time in the trial.
This means that there is an absolute prohibition of the admission of confessions made to public officers other than judicial officers.
The rule contained in Article 26 of the Evidence Ordinance reads as follows: ‘No confession made by any person whilst he is in custody of a police officer, unless in the presence of a Magistrate shall be proved as against such person.’
However, in cases under the PTA confessions are admissible, provided they have been made ‘voluntarily’.
This means that there are two different laws regarding criminal trials in Sri Lanka.
This is a violation of the fundamental principle of equality before law regarding the issue of fair trial itself, AHRC said.
There is absolutely no basis to argue that the type of trial offered to one class of person coming under a particular law, should be different to the basic rules of fair trial applicable to all other cases. 
The absolute prohibition against the admissibility of confessions in a criminal trial was based on the perception of the nature of the police and other investigating officers.
Judges, over a long period have reaffirmed the relevance and validity of this principle in the specific context of Sri Lanka.

In some judgments the Supreme Court went on to hold that a confession made to police officers or other such officers be held inadmissible due to the awe and fear with which state officers are regarded in Sri Lanka.
Thousands of cases of blatant cruelty exercised by police officers throughout the country in recent years demonstrate that the circumstances under which the absolute prohibition against confession was introduced to Sri Lanka has not changed.
The justification for this rule is as valid as ever.
There is no reason to believe that the circumstances under which suspects in offenses under the PTA and Emergency Regulations are held are any less frightening, more comfortable and cozy than the circumstances under which suspects of other crimes are held.
In fact, the overwhelming evidence, beginning with the treatment of suspects of the 1971 insurrection up to now under the PTA and Emergency Regulations demonstrate the very opposite.
Anyone who wishes to know of the gruesome details of such detentions need only look into the evidence given by thousands of persons before the commissions for forced disappearances during the period of the late 80s.
Besides the reports of the commissions there are volumes of recorded statements by the commissions which run into thousands of pages that indicate what the conditions of detention under these circumstances can be.
The recent rules of prolonged detention at police stations and other detention centres should be a greater reason to reinforce the absolute prohibition on the admissibility of confessions in trials.
Whether any confession was made in the Tissanayagam case or whether it was made voluntarily or not is not the issue that needs attention.
It is the abandonment of the absolute principle against the admission of confessions that needs substantive consideration.
The changes in the rules of fair trial in favour of the prosecution is like changing the rules of the boxing ring to allow stabbing to one of the combatants against his opponent.
It is like the last fight of Hamlet where, by the king’s conspiracy, a poisoned sword was given to Laertes while a normal sword was given to Hamlet, the AHRC statement said.
A fair prosecution should never be fought with a poisoned sword.
The change in rules of fair trial is one of the most fundamental issues of any nation. It is not just the question of the right of one person.

In fact, it exposes the nature of justice in the country as a whole.
Therefore we urge that all the concerned persons within the government, the legal community, civil society and the international community intervene in order to negate these provisions under the PTA which allows the abandonment on the absolute principle against the admissibility of confessions, it added.
 
AHRC, founded in 1984 and based in Hong Kong, is a regional non-governmental organization monitoring and lobbying human rights issues in Asia.

Tissainayagam, PTA, and Humanitarian Crisis in Vanni

[TamilNet, Friday, 05 September 2008, 11:45 GMT]
The action taken by the Sri Lankan Government to indict Tissainayagam, for stating the truth and exercising the right of fair comment he enjoys as a journalist, make it impossible for any dissent from the governments point of view to be published by the press in Sri Lanka. Tissainayagam is the first journalist to be caught up under the Draconian twins, the Prevention of Terrorism Act No:48 of 1979 (PTA) as amended, and the Emergency Regulations (EMR).

Tissainayagam, Tamil journalist in jail
Ironically, the regime of one time champion of the southern youths has used the PTA, promulgated as a Temporary Provisions Act with the stated objective of putting down the rebellion by the youths in the South in the seventies by JR Jeyawardene, to stifle journalists.
PTA and EMR make it possible for the Sri Lankan armed forces to to arrest people under ‘suspicion’ and enables the Police to keep these ‘suspects’ under detention for a long time. There is no right to bail under these acts. Only recourse is the Fundamental Rights Application under article 126 of the Constitution.
When a person is arrested under ‘suspicion’, it should be reasonable suspicion, and when the arrest is based on information, then that information should be credible. Courts have held on many occasions that the Police should not arrest a person and then look for evidence to justify the arrest.
However, Sri Lanka’s many special laws allow as admissible evidence ‘confession’ by a suspect, paving the way for Police to obtain the “confession” by torturing suspects.
Tissainayagam has gone to the Terrorist Investigation Department (TID) of the Police in Colombo looking for information regarding the arrst of V.Jasikaran Vadivel Valarmathy, the owner of E-Quality Printers and a former journalist attached to a Batticaloa based Tamil Newspaper ‘Thinakkathir’, and his wife, when he was arrested.
Committee to Protect Journalists (CPJ) has condemned Tissainayagam’s long detention and harsh charges for publishing a Magazine.
Free Media Movement (FMM) of Sri Lanka said that Tissainayagam’s arrest and indictment undermines Universal principles of procedural justice and confers inordinate powers in the hands of executive; it also directly undercuts the freedom of expression and that of the media by allowing content control by the executive on pain of penal sanction.
The indictment, amongst other matters refers to,
the July,2006 editorial of the North Eastern Monthly magazine, under the heading “Providing security to Tamils now will define northeastern politics the future” “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 perpetrators of the killings,” and
the November,2006 North Eastern Monthly, under the heading , “with no military options government buys time by offering watered down devolution” “such offensive against As this story is being written, Vaharai is being subject to intense shelling and aerial bombardment.”
In fact these words of Tissanayagam while being apt in describing the conditions that prevailed during the forced displacement of Tamils in the East including Vaharai in violation of the provisions of CFA are almost prophetic of what is happening in Vanni now. The only difference is that the IDPs from sampoor, chenaiyoor, Eechilampattai,verukal, Vaharai, kathiraveli, and other areas (a major part of which has now been declared as a high security zone by a Government Gazette notification by the President, and where in sampoor a highly pollutant coal power generation plant is to be built) were driven into the Government controlled areas through aerial bombing, shelling, multi barrel artillery attack and Naval shooting of coastal areas, whereas now, Tamil people due to the military operation have voluntarily chosen to go into the heartland of the LTTE liberated areas of Kilinochchi and Mullaitivu from Mannar, Madhu, Vavuniya North, Vaikulam, Vannerikulam, Akkarayankulam, Manalsaru, Oddusuddan and Malavi.
Presently about 130,000 IDPs are living in 31 schools in and around Kilinochchi and another 50,000 are living under trees and bushes and in the open. They are being subjected to vicious aerial bombardment by the Sri Lankan Air Forces. The government which has the duty to protect its citizens have turned to be their killers.
The IDPs are not ready to go back to the Government controlled areas fearing abduction, torture, and extra judicial killings by military and the para-militaries working with them.
The action taken by the Government to indict Tissanayagam for stating the truth and the right of fair comment he enjoys as a journalist makes it impossible for any dissent from the government’s point of view to be published by the press in Sri Lanka.
It is also another way of intimidating the journalists in addition to the physical violence perpetrated on them by thugs and a member of the cabinet who leads the thugs.
Following is the full text of the indictment, which TamilNet obtained through the legal sources in Colombo:
The Indictment
This complaint states that in Colombo, which is within the jurisdiction of this court during the period between 1st June 2006 and 1st June 2007, the accused together with unknown persons committed an offence or abetted the commission of an offence or entered into a common intention with a prior understanding to abet the commission of an offence whether planned or unplanned, by words either spoken or intended to be read or by signs or by visible representations or otherwise, which intends to cause the commission of acts of violence or racial or communal disharmony and brings the Government into disrepute, through the printing or distribution of the publication North Eastern Monthly magazine or by agreeing to commit or abet the commission of the offence of acting to promote that organization, and that since the aforesaid offence has been committed as a result of the said conspiracy, an offence which is a punishable under section 2(2)(ii) read with section 2(1)(h) of the Prevention of Terrorism (Temporary Provisions) Act no. 48 of 1979 as amended by Act No. 10 of 1982 and Act No. 22 of 1988 which is to be read with section 113 (a) and section 102 the penal code has been committed.
In the above time, place and circumstances, an offence has been committed by words either spoken or intended to be read or by signs or by visible representations or otherwise, which intends to cause the commission of acts of violence or racial or communal disharmony and brings the Government into disrepute, through the printing or distribution of the publication North Eastern Monthly Magazine or by acting to promote that organization, through the publishing of its contents seen in the document extract marked “X” and annexed hereto, which is a punishable offence under section 2(2)(ii) read with section 2(1)(h) of the of the Prevention of Terrorism (Temporary Provisions) Act no. 48 of 1979 as amended by Act No. 10 of 1982 and Act No. 22 of 1988 which is to be read with section 113 (a) and section 102 the penal code.
In the above time, place and circumstances, an offence has been committed by contributing or collecting or obtaining information relating to or donating funds for the purpose of terrorism through the collection of funds from Non Governmental Organisations for the North Eastern Monthly magazine, which is an offence punishable under Regulation 6 (c) of the Emergency (Prevention and Prohibition of Terrorism and Specified Terrorist Activities) Regulations No. 07 of 2003 published on 6th December 2006 in Gazette Extraordinary No. 1474/3 of the Democratic Socialist Republic of Sri Lanka.
Annexure X
By stating in the July 2006 the editorial of the North Eastern Monthly Magazine under the heading “Providing security to Tamils now will define northeastern politics of the future” stating, “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.”
By stating that in the November 2006 North East Monthly, under the heading “With no military options Govt. buys time by offering watereddown devolution” he states, “Such offensives against the civilians are accompanied by attempts to starve the population by refusing them food as well as medicines and fuel, with the hope of driving out the people of Vaharai and depopulating it. As this story is being written Vaharai is being subject to intense shelling and aerial bombardment.”