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SRI LANKA: The contrast between the treatment of J.S. Tissainayagam and Daya and George Master – is the CID above the law?

[MISC, Tuesday, 15 September 2009 07:58 No Comment]

A Statement by the Asian Human Rights Commission

Last week two prominent LTTE leaders, Daya Master and George Master, were released on personal bail by a Magistrate in Colombo after the Criminal Investigation Division (CID) filed a report stating that the inquiries under the Prevention of Terrorism Law were concluded and that there was no evidence to proceed against them under this law. The two men were involved in the communications and propaganda unit of the LTTE, one as the official spokesman and the other as a translator. On the 31st August, J.S. Tissainayagam, a well reputed journalist who, in 2006, had written two articles on the military conflict that was then taking place in the north and the east, was sentenced to 20 years of rigorous imprisonment under allegations of aiding and abetting terrorism and trying to incite people to racial violence.

The shocking contrast of treatment raises many issues with respect to the authority of the CID and the Terrorism Investigation Division (TID) in the interpretation of evidence against suspects. It also raises questions about the operation of the Prevention of Terrorism Law in Sri Lanka.

Both Daya Master and George Master are well known members of the LTTE. They have acted in that role for many years. They have worked under the direction of the leader of the LTTE, Prabakaran and carried out their duties within the framework of the organisation and promoted its interests. They have lived with the LTTE leadership to the very last; until the defeat of the organisation. They surrendered to the government and have given open interviews in the national television about their involvement with the LTTE.

In contrast, J.S. Tissainayagam is a civilian who had, at no stage, any kind of membership or a party link to the LTTE. At no stage was any such allegation made by the government. No attempt was made to lead any kind of evidence to that effect in court. The evidence also clearly emerged during the case that he was, for a long time, a journalist working in many newspapers, some of which are the best known English language papers in the country. His record as a person interested in human rights with a long track record that included his work in the late 80s relating to the disappearances of mostly Sinhala youth was also not challenged. That he had worked in close collaboration with the incumbent president, Mahinda Rajapakse when he was in the opposition regarding human rights violations and particularly in helping in the preparation of documents to be presented to human rights agencies in Geneva, was also not challenged in the court.

Regarding the few lines from the two articles written by him, witnesses gave evidence to the effect that, on plain reading, such statements would not lead to any kind of racial hatred. There was also no evidence at all to create an impression that the passages that the prosecution relied upon were intended to create any such impressions of racial hatred.

There was no direct evidence of any sort to imply that J.S. Tissainayagam had aided and abetted the LTTE. In fact, in the statement he made in court he clearly stated that he is a man committed to non-violence and at no stage had he advocated violence. There was no evidence before court to contradict this position.

It was the CID that submitted a file to the Attorney General’s Department and reports to the court claiming that J.S. Tissainayagam had acted in a manner which amounted to the committing of offenses under the Prevention of Terrorism Law. It is this same CID that has filed reports at the Magistrate’s Court in Colombo stating that there is no evidence to proceed against Daya Master and George Master under the Prevention of Terrorism Law.

What kind of norms and standards has the CID followed in making their judgements in order to proceed or not to proceed in these two cases? Clearly the norms and standards applied cannot be regarded as the same. Obviously the norms and standards applied are clearly in opposition to each other. If there is a need for an example of absolutely double standards being applied on matters of criminal law which deals with the lives and liberties of the people, these cases provide such an example.

To whom is the Director of the CID responsible to in filing allegations against suspects? Is the Director of the CID above the law? If not what is the law that is binding on him? Is he bound to observe the basic principle of equality before the law when filing reports or withdrawing allegations? Is he bound by the norms of criminal justice which require that all evidence must be measured on norms and standards applicable to judging guilt or innocence? Has the Director of the CID the right to act as arbitrarily as he wishes.

The answer, obviously, in terms of the Prevention of Terrorism Law is that the Director of the CID has the power to act as arbitrarily as he wishes. There is nothing to stop him in treating black as white or the other way around. He can declare a member of the LTTE as an innocent person and he can declare someone who had nothing to do with the LTTE or any other organisation that promotes terrorism as a terrorist. The choice is entirely his. All that he needs to do is get the signature of the Secretary of the Ministry of Defence in support of his reports.

The moment the Director of the CID decides on these matters the greatest powers in Sri Lanka operate to support his position. The Constitution is powerless when the Prevention of Terrorism Law is invoked. Today in Sri Lanka the supreme law is not the Constitution but the Prevention of Terrorism Law.

Many decades ago, when emergencies laws were declared they could be challenged if they violated the Constitution. There are many instances in which the courts have declared some provisions of proposed emergency regulations as null and void. In this age of the Prevention of Terrorism Law the people of Sri Lanka do not have the ability to resort to courts on the basis of the Constitution to get provisions of the Prevention of Terrorism Law declared invalid.

The damage done to the Constitution by, first of all the executive president being placed above the Constitution has now spread to making any officer operating under any draconian law to be made into a position of being above the law including the Constitution itself.

The first executive president, J.R. Jayewardene speaking about his powers under the Constitution declared that other than making a man into a woman he could do everything else under this Constitution. Now, it appears not only the president but even the Director of the CID can make a terrorist declared an innocent person and an innocent person declared a terrorist.

The contrast of treatment of J.S. Tissainayagam and the two LTTE Masters violates every civilized norm of decency and law. It is a clear indication of a society in which the law simply does not matter. It reveals the dangers that every citizen faces who is not willing to be a stooge of the ruling regime. It is time for the people of the country to realize the absurdities on which their entire legal system is based and to revolt against this situation.

The Asian Human Rights Commission urges everyone to demand the immediate release of J.S. Tissainayagam made a prisoner under an unjust law applied also in a most unjust manner. The AHRC also urges everyone to demand the urgent repeal of the Prevention of Terrorism Law.

We reproduce below the full text of the statement made by J.S. Tissainayagam to court:

I wish to commence this statement with a brief introduction about my home.

My father was a government servant for 40 years. He served at the Department of Information and retired as its Director. Later he worked in the Prime Minister’s office as an Assistant Secretary and was the speech writer to the Prime Minister. I grew up in an environment of mixed ethnic groups in Colombo. In school too my friends were from all the different ethnic communities of our country.

My first language is very much English and although I can speak Tamil, I am not very fluent in Tamil. After my high school I entered Peradeniya University and studied in English. There too all my friends were from different ethnic backgrounds.

I joined the Sunday Times in 1987 after university and later have worked as a journalist in a few English language national newspapers. I joined Marga in 1989, pioneered discussions and engaged in research on how to solve the national issue peacefully.

While I was at Marga and later also, I helped OPFMD (Organisation of Parents and Family Members of the Disappeared.

I helped the families of the disappeared persons from the south due to insurrection by collecting information and translating them into English to send to organisations such as Amnesty International and the UN.

Vasudeva Nanayakkara and HE Mahinda Rajapakse gave it political leadership and took the documents to Geneva.

Was always worried for the safety of the civilians.

Intention was to stop the killing of youth, whoever they were.

Although I told all this when questioned at the TID, they never wrote these things down, and even when Razik dictated for me to write down he left all this out.

I spoke up for the employees and as a consequence my services were terminated. I filed an application in the Labour Tribunal and was awarded compensation. Although Marga appealed to the High Court, it was dismissed.

1994 to 1995 – I worked on a project for UNICEF through an organization called The Medium. Went to the east and did a documentary on children left parentless due to the conflict due to activities of the LTTE, JVP, EPRLF, IPKF, state created violence and other paramilitary groups.

This was also left out of all my statements.

Disappearance Commission – 1994 to 96: I helped them in various ways, collected info, translated them into English, helped to coordinate with families. This was also left out of all my statements.

Knowledge of Tamil: I am not fluent in Tamil, my work has always been in English. I can speak Tamil, but am not fluent. For the first time after I left school I was made to write in Tamil when Razik forced me to take down what he dictated. This is what is now claimed to be my confession. I never wrote it on my own and I stand by the evidence I gave at the voir dire.

I was also scared of my eye condition since I have had surgery for retinal detachment. If it recurred, I would go blind fully. Therefore even when I protested as the factual inaccuracies what is said to be my confession, I wrote it since Razik threatened me and also told me that I would be released soon if I cooperated. He said that they had to send it to the Supreme Court.

Charge under the PTA: It is unfair and illegal to charge me under the PTA for acts said to have been committed during the operation of the Ceasefire Agreement when the government had given an undertaking to relax the operation of PTA and allowed the free movement of the people from north and south into both LTTE and government controlled areas.

I travelled to the north and east during the CFA, as a journalist, collected information about life there to include in my writings, interviewed people from a vast spectrum such as political leaders, religious leaders, scholars, the displaced people, activists, NGO, LTTE leaders. I personally know that many other journalists also travelled to the north and east during this time for the same purpose. I have also spoken on the telephone many times with persons who lived in those places to obtain information.

A person called Baba never offered me any money I never received money from him or the LTTE.  North Eastern Monthly was run on a commercial basis. It was sold at bookshops like Vijitha Yapa and Makeen Bookshop. There were subscribers too. The Account Number in which to deposit the subscription money was printed in the North Eastern Monthly from January 2007. Therefore the Account Number was available to anyone who bought the magazine.

I was and am still an advocate against terrorism. I have criticized terrorism in whatever form. I never advocated violence, my objective was to generate non violent means of resolving the conflict, my research, writings and work was towards achieving this.

OPFMD was at one stage involved in securing the release of soldiers and policemen captured by the LTTE. They made contact with the LTTE for this purpose and travelled to the Wanni also. In order to arrange these trips, I have often spoken on the phone in Tamil. I could manage with their contact persons. This was also left out of all my statements.

I am a non violent person and always agitated against violence and for justice for the oppressed. By writing the two articles referred to in the indictment, I never intended to cause violence or communal disharmony and no such thing ever occurred as a result of those articles. This is all I have to say.

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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

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