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Thought crime, torture and kingly fiat

[TamilNet, Saturday, 15 May 2010 09:30 No Comment]

“Tissainayagam’s pardon is clearly an act of Sri Lanka’s international diplomacy, an act made possible by the complete absence of the rule of law as an operating principle in its legal system,” writes a columnist in the Tamil Guardian newspaper. “[While] the legal system’s ability to convict Tissainayagam on the basis of a confession obtained under torture on charges that amount to accusations ‘thought crime’ reveal that Sri Lanka has fully departed from the principles of the rule of law […] the Presidential pardon echoes medieval forms of justice dispensed as royal patronage and is in keeping with Sinhala leaders’ proclivity for styling themselves as mythical Sinhala rulers.”

The full text of the op-ed follows:

The detention, trial, imprisonment and subsequent pardon of the journalist Tissainayagam reveals that the rule of law no longer applies in Sri Lanka. Tissanayagam’s almost two and a half year ordeal by law sets out the extent to which the law in Sri Lanka has become an instrument of political and ethnic coercion rather than the guarantor of justice, rights and stability.

After months of mounting international pressure, it appears that Tissainayagam will finally be pardoned by Presidential decree – an outcome that does little to restore faith in the system whilst revealing that Sri Lanka’s legalised capacity for violence and coercion can only be restrained by international intervention.

The conditions of Tissainayagam’s detention as well as the charges that were laid against him violated all the fundamental principles that guarantee the law’s compliance with the principle of the rule of law. Despite all of this Sri Lanka’s legal system delivered a verdict of guilty and in accordance with its own distorted principles sentenced him to twenty years of imprisonment.

Kept in detention for months without charge Tissainayagam and the other Tamil journalists were subject to abuse including the extraction of forced confessions. They were denied proper access to defence and police officers supervised the few meetings the defendants were allowed with their lawyers.

Not only was Tissainayagam finally convicted and sentenced on the basis of a forced conviction, the charges of ‘inciting communal hatred’ were also a clear violation of universally applicable norms regarding the reasonable expression of political dissent.

He was charged on the basis of articles and editorials that appeared in the English language North East Herald that reported on Sri Lanka’s military campaign from a Tamil perspective as a fundamental threat to Tamil lives, security and integrity of the Tamil polity.

Although there was nothing in this that could reasonably be interpreted as inciting communal hatred, it was of course fundamentally at odds with the mainstream Sri Lankan media’s depiction of the war as an epic struggle against terrorism which would finally liberate the Sinhala motherland from the clutches of LTTE separatism.

The legal system’s ability to convict Tissainayagam on the basis of a confession obtained under torture on charges that amount to accusations ‘thought crime’ reveal that Sri Lanka has fully departed from the principles of the rule of law.

The Sri Lankan president’s reported decision to pardon him does not restore legality or a sense of fairness to the conduct of this case. A presidential pardon is not the same as a legal acquittal and Tissanayagam’s life and freedom has ultimately been decided by presidential whim rather than the normal operation of an impersonal but just set of legal mechanisms.

The Presidential pardon echoes medieval forms of justice dispensed as royal patronage and is in keeping with Sinhala leaders’ proclivity for styling themselves as mythical Sinhala rulers.

Rajapakse associates himself with the fabled Duttugemunu, his predecessor Chandrika chose to mark the Sinhala military’s capture of Jaffna in a ‘royal’ style ritual in which she received the Tamil city that was renamed in Sinhala as ‘Yappapatune’. Meanwhile Sri Lanka’s first executive president Jeyawardene penned a treatise entitled ‘Golden Chains’ in which he presented himself as the latest in a 2,000 year line of Sinhala chieftains.

Not only does the pardon fail to exonerate Tissanayagam of the chilling charges of ‘thought crime’, it also fails to address the sinister provision of Sri Lanka’s anti terrorism legislation that leaves Tamils at the mercy of an ethnically biased legal system.

In June 2009 a report by the Human Rights Institute of the International Bar Association found that Tamils were left ‘unprotected’ in Sri Lanka’s legal system as the legal aid system, funded by the UN, operated a policy of not providing assistance to cases involving terrorism legislation. This has left many Tamils incarcerated for years at a time without hope of legal redress.

In October 2009 for example a Colombo based human rights group found a twenty nine year old Tamil youth in Welikada prison who had been detained for fifteen years, since the age of fourteen, under the terrorism legislation. He had not been charged or brought before a court and had been deprived of fifteen years of his youth for no apparent reason except that he was Tamil. There are possibly countless others in a similar situation.

Tissainayagam’s freedom was finally assured by his international profile which led to sustained pressure on his behalf. Tellingly it was Sri Lanka’s external affairs minister, G. L Pieris, who announced the pardon to the gathered international media. The pardon is clearly an act of Sri Lanka’s international diplomacy, an act made possible by the complete absence of the rule of law as an operating principle in its legal system.

Sri Lanka may hope that pardoning Tissainayagam will ease the international pressure, perhaps reversing the European Union’s suspension of preferential tariffs on the island’s key export, garments. However, the international community can no longer afford to be bought off with such superficial gestures.

Royal pardons have no place in a state that must now grow up and become a stable, inclusive and constitutional democracy. Sri Lanka’s legal, administrative and constitutional systems require a radical overhaul. As the outcome of Tissainayagam’s legal ordeal demonstrates, the only way this can be achieved is through sustained and ongoing international intervention.

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