The Colombo High Court judge Ms. Deepali Wijesundara Friday fixed the judgment for August 31 on the case against senior journalist Mr.J.S.Tissanayagam who was indicted under the Prevention of Terrorism Act (PTA) and Emergency Regulations (ER), legal sources in Colombo said. Mr. Tissainayagam was charged on three counts including printing and distributing the publication North Eastern Monthly magazine, and the offences was stated to have been committed during the period between June 1, 2006 and June 1, 2007.
According to the indictment the accused had committed an offence under PTA and has committed acts of violence by inciting communal feelings by editing, printing or distributing the North Eastern Monthly magazine. Tissainayagam was also charged under the Emergency Regulations for collecting money for the furtherance of terrorism or specified terrorist activities.
State Counsel, Sudarshana de Silva appeared for the prosecution.
Senior counsel Anil Silva and M. A. Sumanthiran filed written submission on behalf of the accused journalist when the case was taken up for further inquiry on Friday.
Counsel for Tissanayagam stated that the position of the prosecution during the trial was that the accused journalist when he wrote the said passages was intending to record evidence against the government to be used at a War Crimes Tribunal, and not what he is originally charged with, and therefore, he should be acquitted.
The counsel stated that it is an axiomatic principle that the accused cannot be found guilty of what he was not charged with. Therefore, he cannot be found guilty of “intending to record evidence to be used at a war crimes tribunal," which in any case is not an offence.
Defense counsel also stated that the circumstances that led to the arrest of Tissainayagam also throw some light on whether he can even be charged with these offences. According to the prosecution Tissainayagam was arrested at the Terrorism Investigation Division (TID) when he went to visit some colleagues who had been arrested the previous day. After the said illegal arrest, the police went looking to finds some incriminating evidence, and all they did was seize several issues of the North Eastern Monthly.
However, even the officer who seized the magazine did not understand what was written in the magazine.
The defence counsel further stated in their written submission that the prosecution has taken up the position that the accused has been charged with the offence only because he is an ethnic Tamil.
“It is to be noted that the “state security forces” comprise persons from at least five ethnic groups, Sinhala, Tamil, Moor, Malay and Burgher, and therefore, any criticism or displeasure expressed towards the armed forces cannot be seen to be an attempt to incite violence on the basis of race or ethnicity. Tissainayagam himself did not consider the state security forces to be “Sinhala”, since he helped the families of the disappeared in the South, who themselves were all Sinhala,” the Defense Counsel said.
Mr. Tissainayagam has not done anything as against any religious, racial or linguistic or regional group or community. He only criticized the government and the State security forces, and did not direct any criticism or attack against any race or religion, the defence submitted.
The defence position was that the prosecution has not established that the writer maliciously intended to write the article in question so as to cause violence. The accused, in his working life had always stood up for the underdog or the oppressed. He had even lost his own job on account of speaking up for other workers, the Defense counsel said.
During 1988 to 1990 period of the 2nd JVP insurrection in the South the Mr. Tissainayagam helped the cause of the families of the disappeared, who were all Sinhala youth. He compiled names of missing persons which was carried to the United Nations working committee meetings in Geneva by the present Sri Lanka’s President Mahinda Rajapakse who was an opposition MP at that time, the Defense Counsel added.
This position was proved by the evidence of defence witnesses including President’s Advisor, Vasudeva Nanayakkara, Manouri Muttettuwegama, Y.K Hemachandra de Silva and Ven. Baddegama Samitha Thera, the defence stated in its written submission.
In a recent report critical on Sri Lanka judiciary, the International Bar Association said: "The delegation understands from reports received during its meetings with other journalists that there have been considerable procedural irregularities in the post-detention treatment of Mr Tissainayagam which amount to violations of due process under national and international law. To the IBAHRI’s knowledge, these irregularities have not been investigated…."
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