FREEDOM OF EXPRESSION SRI LANKA

For press freedom by Sunanda Deshapriya

J.Tissainayagam – Case and after

Contents:

  • Coverage of Tissa’s judgment by SL media
  • Letter to commissioner of prison by Vasudeva Nanayakkara
  • English translation of the full Judgment
  • A Summary of the Order – (the judgment)
  • The judgment in Sinhala 4 parts read as  PDF
  • Key points raised by Mr. Anil Silva, PC, lawyer for J. S. Tissainayagam
  • CHRONOLOGY OF EVENTS FOR TISSAINAYAGAM’S CASE
  • Tissa’s articles produced in courts as evidence
  • Tissa WS – Written Submissions for the Accused J. S. Tissainayagam; read as a PDF
  • Voir Dire submissions on behalf of Tissainayagam
  • Tissa’s statement to the courts

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HEAVY CHAINS ROUND JOURNALIST TISSANAYAGAM’S FEET

January 6th, 2010 Centre for Policy Alternatives

Article originally written in Sinhala. See Tamil translation here.

The judgment of 20 years with heavy labor passed on media reporter J. S. Tissanayagam recently sent shock waves internationally, among the societies that value democracy and especially amongst the community of the international media, who thinks the charges brought against him and the ruling of the courts as highly unreasonable. This verdict imposed on the 31st of August has become the main point of discussion among the civil society and those actively engaged in the media related work. Over this sentence there is some displeasure voiced to some extent within a section of the media in our country to and to a larger extent among the civil society, about the danger on the freedom of expression as a result of the prevention of terrorism act and the state of emergency. The failure on the part of the defendant’s lawyer to convince the Judge to get the sentence which is based on 3 separate charges lessened to 10 years from the original verdict of  20 are noted as weak points and are currently in discussion. Certain reports made by some media after a careful observation on the judgment passed are of the opinion that under the ruthless law named the Prevention of Terrorism Act, even though he is not going to be the last person to be jailed, certain evidence brought against him, being the first person, had not been in his favor.

However the charges framed against him are based on the ‘North Eastern Monthly’ published by him. One accusation against him is over two articles published by him between 01st June 2006 and 01 June 2007. The other is publishing the magazine and distributing it. A sentence of 5 years each for both indictments has been passed. The 10 year period imposed was, using this magazine for collecting funds for terrorism. As per the media reports, during that period, the 2 articles referred to contain the harassment the Tamil people were subjected to during the war situation. As could be seen those were reports on the human rights violations. Whether the facts were true or not it was the decision of the courts. But it is important to understand here how the Sri Lanka Media thinks, of imposing such a hard sentence on Tamil media reporter Tissanayagam, for publishing articles on human rights violations on behalf of Tamil  people.

From 31st December, the day on which the sentence was passed until the 06th of October, as observed, there wasn’t much disapproval shown by the media against the threat aimed at them indirectly, through the verdict of the court. As observed while reporting the incident, certain media, though warned of the consequences, hasn’t made much effort to create an impact. Certain government and private media while reporting the sentencing of Tissanayagam, did so in a roundabout way favoring the decision of the court. Therefore only a small group of media personnel seems to be making a desperate attempt to show the sentence passed on Tissanayagam as being unfair.

After the judgment was passed out of the 4 newspapers that were under observation, two (Lankadeepa, Lakbima) published it in their front pages in small captions. In one, it was given very briefly whereas in the other (Lankadeepa) it was more detailed. It tries to convince the reader that Mr. Tissanayagam’s lawyer has not only appreciated his client’s role as a journalist who represented the human rights violations on behalf of Tamils but also circuitously addressed on behalf of human rights violations of Sinhala people too. But then the subheading titled ‘rousing communal hatred-guilty of helping terrorism’ brings doubt to one’s mind whether this article came to be published under certain manipulations. However 2 other newspapers (Dinamina, Divaina) reported Tissanayagam’s verdict in the headlines but their view was different as could be treated as supporting the verdict of court. During the entire period there were nearly 18 news reports, special commentaries, editorials and columns published in the Sinhala newspapers. A Sunday Lakbima newspaper article reported the risk of  making any statements on the freedom of expression in matters connected with the Prevention of Terrorism Act. An article written by Janaranjana of the Ravaya newspaper is worth taking note of. It is an eye opener to how the TID and the Attorney General’s Department intervened before the final judgment was passed on Tissanayagam, preventing any fairness being done to him, through the verdict of the court, after he was taken into custody in a unfair manner. Janaranjana’s article begins with a statement made by the defendant’s lawyer commending his role as a journalist and not a person who wanted to raise communal hatred or sow seeds of ethnic disharmony and the sentenced passed on him as a threat to the media freedom of the country. He continues with the notion that, the final verdict had gone beyond the normal course of justice and seems brutal as to sentence a media personnel for 20 years for writing 2 articles, which were true to his convictions and conscience is simply trying to control the freedom of expression through a Prevention of Terrorism Act. The theme of his article is also ‘the country where a person is jailed for 20 years for writing 2 letters’. He writes to say that the justice system in the country is very uncertain. The paper says that Tissanayagam will be presented the Peter Mackler award given to fearless and ethical journalists by the Reporters without Borders. He will also be presented with the award for ‘freedom of expression’ by the association protecting the rights of the press.

4 Tamil newspapers made headlines about the verdict of the court but the government Tamil news paper Thinakaran, to all appearances published it in favor of the decision of the court. The other 3 newspapers, Suder Oli, Thinnakural and Virakesari carried the tribute made by the defense lawyer of Tissanayagam on his behalf, while at the same time highlighting the importance and responsibility of his role and seriousness of the judgment passed. These newspapers also make mention of the Peter Meckler award due to be presented to Tissanayagam. These 3 newspapers also bring into focus the disgust the different International media organizations show about the sentence imposed on Tissanayagam in order to suppress the freedom of expression through the intrusion of the Prevention of Terrorism Act. The 3 editorials in these newspapers also attempt to show the threat aimed at the press freedom through this incident. However all Tamil papers have given the government representatives also a fair opportunity to get their views published.

The Daily Mirror which always gives an unbiased analysis of the post war period gave a good coverage to the incident. It’s presentation on the statement made by Tissanayagam’s lawyer Mr. Anil de Silva  is comprehensible. A statement made by Anura Priyadarshana Yapa at a weekly press meeting regarding this, was given prominence. This article is also supported by pictures of Tissanayagam’s arrest, him being taken to the prison and when he was produced in Courts. Tamil and Sinhala newspapers of the government, and few English newspapers reported this matter not much in favor of the accused. Even the Island paper in it’s lead page article shows more concern for Tisanayagam’s prosecuting lawyer who was not given proper protection on the day the case was heard. The Sunday Times which mentioned that Tissanayagam wrote a column to their newspaper, confined the incident to just 2 short articles. But nothing published to show any concern for their journalist. Among the English newspapers the best detailed piece of writing appeared in one of the Sunday Leader publications. It had an editorial entirely on the incident, 2 full page commentaries and 2 news items. The 2 page commentary was written in a understandable language with a short summary of the contents in the charge sheet, the confession made by the accused and the letters written by him to have him arrested, and also about how the Prevention of the Terrorism Act has turned out to be a hazard to the freedom of the media. It’s editorial brings to the notice of all how this incident had become a threat the democracy of the country. There are 4 cartons published in connection with the incident and all of them are printed only in the English news papers.

All television channels except the National Rupavahini reported about the sentence passed on Tissanayagam and the Sirasa TV reported it as their 2nd most important news item. ITN also reported the incident and the Derana TV though it reported it as one of their headlines failed to give it due prominence. The Sirasa reported the incident in detail, warning of the repercussions connected with the verdict of the court. It also included a statement made by the Secretary of the Free Media Movement. But there was a similarity in the reports of the Derana and ITN channels. They were much closer to the opinions published by the government newspapers. Only the Sirasa TV reported about the Peter  Meckler award offered to Tissa. However compared to the reports published in the printed media the coverage given by the electronic media seems weak.

According to Tissanayagam’s lawyers’ statement made before the courts, saying that others should realize Tissa’s fate is going to be the same that will befall other media personnel in this country was reported in several media reports. The entire world was shaken by the judgment passed on him but some of the media personnel in our country, who had the backbone to voice their protests, did so and the others ducked. Some even spoke in favor of the sentence passed. Are they through fear taking precautions to avoid being a victim of a similar a situation? Is Tissanayagam the first journalist who became a victim of the Prevention of Terrorism Act just because he is Tamil? On the other hand the reports connected with rousing feelings of racism amongst the Sinhala people in the history are so many, then why do they only take note of reports supposed to be creating disharmony among Tamils?

http://www.cpalanka.org/mediamonitoring2009/?p=455

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Tissa – Vasu letter to Prison Commsioner-01Sep09 read as pdf

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Tissa – judgement eng translation + written submisison read as PDF

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A Summary of the Order

for the verdict in full read as a pdf: convicted- SL order

Journalist Tissainayagam was indicted in the High Court of Colombo on the following offences…

1. Between the 1st of June 2006 and the 1st of June 2007 you have with persons unknown to the prosecution, with intent to commit a crime with a common intention with or without premeditation by word, sign, or visual representation have caused to wit arousing communal feelings by editing, printing or distributing the magazine called North Eastern Monthly, you have conspired and committed the offence punishable under s.113(b) and s.102 and The Prevention of Terrorism Act.

2. You have in the same course of events, have published or distributed the articles listed herein in the North Eastern Monthly magazine and committed the offence as referred to in the above law.

3.  You have in the course of the said events, collected money or made payments on terrorism or aided and abetted by collecting  money for the said magazine, North Eastern Monthly has committed the offence as referred to in the Emergency Regulations published on the 6th of December 2006.

The Prosecution summoned 10 witnesses and marked documents P 2(1) to P2(8) and P3 and P4. The defence summoned 8 witnesses and marked 30 documents on behalf of the accused Tissainayagam. The First Witness was A.S.P. Ananda Raj Ranasinghe who marked the confession of the accused as P1, which was recorded in Tamil and translated to Sinhala by S.I. Razeek.

Police Inspector Harendra Janakantha said in evidence that on receipt of information on 06.03.2008 he had visited the house of the accused and others and thereafter on the 7th he had visited the residence of the accused at 3.30 p.m., but arrested the accused on the same day at 6.50 p.m. at the T.I.D. as he was functioning as the Director of Rennaissance Publications Ltd. an Outreach media.

At this stage the learned Judge commented “contrary to what was recorded in the beginning, that as the accused could speak in Sinhala proficiently that his statement was recorded in Sinhala and the same was translated and read to the accused with the assistance of S.I. Razeek. Inspector Janakantha was unaware of a confession of the accused being recorded on 08.09.2008.

The Second witness for the prosecution, the General Manager of Vijitha Yapa Bookshop, had said in evidence that he used to sell about 50 copies of the magazine, a month handed over to him by the “association.”

The next witness Rathnasabapathi from Dialog had said that the accused was using the mobile phone bearing No. 077… for approximately four to five years. Another witness from Dialog, named Ruwan Ratnayake had said that the telephone that was taken from the custody of the accused had been issued by him and used by the accused for a period of approximately three years.

The next witness was from Sri Lanka Telecom, named Priyantha Manorathna had said in evidence that the telephone No. 021-2285179 has been issued by Sri Lanka Telecom to a resident in Killinochchi by the name of K. Gnanakuma and that the accused has called the said land phone about 21 times over a period of two years and five months.

Next witness was the Manager of the Hulftsdorp branch of the Hatton National Bank who had said in evidence that Rennaisance Publications had an account in his branch and that the accused along with two others were the Directors of the same. He had given details of certain remittances and withdrawals of Rs. 50,000 each on two occasions and a debit of Rs. 100,000.

Next witness Nishantha Pushpalal had said in evidence that he has raided the premises No. 313 of Jampettah Street and taken about 50 copies of the magazine North Eastern Monthly into his custody which were of the July publication. The topic of the editorial of the said magazine “Providing security to Tamils now will define northeastern politics of the future” was marked as P3 (1) and the passage, “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” was marked as p3(1)a.

It was alleged that the article published on page 16 with the heading “with no military options the government buys him by offering watered down devolution”, was alleged to have been written by the accused was marked as P4(a). Further the passage contained therein, “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 de-populating it. As this story is been written Vaharai is been subject to intense shelling and aerial bombardment,” was marked as P4(a)1. The same witness said in evidence that the North Eastern Monthly magazine was not legally registered at the Information Department.

Next witness for the prosecution was S.I. Mohamed Razeek. He said in his evidence that the “Hour 17” has been changed and altered by someone other than him. He had further said in evidence that he had started to record the evidence at 1900 hours and finished at 2330 hours and that the alterations made on different places of the statement were in fact made by the accused.

Next witness Dias Jayasundara had said in evidence that the accused has on one occasion called the No. 021-2285179 in Killinochchi and the accused had received eight calls from that same number and said that the accused, though resided in Colombo has had connections with the northern area.

The accused gave evidence in English and had said that he is not proficient in Tamil, but in English. He had also said that he worked with the Marga Institute to dawn peace for the Government of Sri Lanka and that he was also an active member of the Parents Congregation of the Disappeared Sons and Daughters Association, and further that he had also written articles in English with names of those who disappeared in the south and brought them to the attention of the foreign institutions for the love of peace and to help the youth of the south.

Further he had fought for the rights of the employees, whilst at Marga and thereby, he lost his job. Thereafter he worked at an institute called Medium and provided facts as per the requests of Unicef. He has also written about the children who became destitute as a result of the north-east war and his articles were translated to Tamil by other persons, and that for the first time he wrote something in detail in Tamil, was when the confession was recorded as alleged by Razeek.

He had also said that Razeek had threatened him from time to time to make the “confession” which was under duress and involuntary. He had further said that he had never received money from the LTTE, but raised the money for his publications commercially. He had spoken to the members of the LTTE though he did not know their names and in some instances met them for the purposes of finding facts and none of the articles he had written were created to help terrorism.

The Learned Judge has opined that since the confession was written in his own hand-writing it cannot be said that he had no Tamil knowledge. Upon his own evidence she had further come to the conclusion that as per his own statement from the dock, he has had connections with the members of the LTTE and its leaders. Therefore it cannot be said that the persons whom he spoke to, the members of the LTTE were not known to him by name. As an educated person and a journalist it cannot be trusted that he spoke to persons by phone, unknown to him by name.

The President of the Association for Disappeared Children, Shakyananda has said in evidence in detail, the contribution the accused had made in writing to the United Nations, for the disappeared Sinhala youth and further said that the accused had helped him during the peace accord time to visit Killinochchi and Jaffna to free the police and army officers who were held by the LTTE. He had further said that the accused had also written articles against the LTTE, of which he was unable to produce any. He did not know the contents of the charges and further said that he is not a reader of the magazine published by the accused.

Attorney-at-aw Vasudeva Nanayakkara gave evidence for the defense, and said that he was the founder of the Association of the Parents of the Disappeared Children. He has opined on the article marked as “X” in the schedule and said that the same contained nothing informatory and it was drawing the attention of the conduct of the Army.

Attorney-at-Law Manori Muththetuwegama has opined that the impugned article is not informatory.

Next witness Kulasiri Hemantha Silva of the Human Rights Commission had said in evidence that he did not accept that the government did not distribute food, water or medicine to the civilians in the north-east. He had said that the article marked “X” is informatory and could cause dissension amongst communities.

The Deputy Director of the National Library Walimunige Sunil, marked in evidence nine articles of The Sunday Leader as V15 to V23 and six articles of Daily Mirror as V24 to V29.

Next defense witness was Ven. Baddegama Samitha who had said that the accused had been of assistance to the Association of Parents of Disappeared Children of the south and categorically said that the article marked “X” is not informatory.

The learned Judge went on to decide that there was no dispute on the authorship of the article “X”. It was the duty of the court only to examine whether the article was written or published with the intent to compel the readers to commit a crime or whether he conspired to the same effect. It is a fact that the accused collected the proceeds of this magazine and that he deposited and withdrew monies from his HNB account.

Kulasiri Hemantha De Silva had said in evidence that people of Vaharai were distributed with food, medicine, fuel and medical facilities. The accused having intentionally written inaccurate facts has therefore intended  to cause criminal action and to create dissension among communities and anger. What did he then intend to create in the minds of the reader? Essentially to  create criminal activities amongst communities. Therefore these publications clarify that he had a criminal intention. The meaning of such publication has to be understood by court in the way an ordinary man would understand it.

Morgan Vs Odhams Press Ltd states “ordinary man has to be taken as a guide. Then we must accept a certain amount of loose thinking as he does not formulate reasons in his own mind.”

Hough Vs London Express states that “ in the case of words defamatory in their ordinary sense the plaintiff has to prove no more than that they were published. He cannot call witnesses to prove what they understood by the words. The only question is might reasonable people understand them in defamatory sense.” Therefore accused’s writings clearly creates hatred and anger in the mind of a person to commit a crime. The accused has deposited and withdrawn monies and collected the proceeds of the sales of the magazine.

Some of the persons who deposited money into his account had not divulged their names. If the readers have deposited money there is no reason why they shouldn’t divulge their names. Therefore essentially these monies were not deposited by the readers but to aid and abet terrorism.

The accused has withdrawn the monies soon after they were deposited in the account in the HNB. Therefore the same was done to publish this magazine. Vasudeva Nanayakkara, Manori Muththetuwegama and Ven. Baddegama Samitha hold the same political view and cannot be equated with that of the general public. Therefore their understanding differs from that of the general public. The fact that he prepared a report to the Human Rights Commission in Geneva is of no relevance to this case. Other defense witnesses gave evidence on what the accused had done for the Association of Parents of the Disappeared Youth in the South has no relevance to this case. It cannot be said that associated un-named persons who were members of a terrorist organisation by telephone.

The confession was accepted in evidence and there he had stated that he had gone to the north and met the LTTE leaders. At the end of 2003 or 2004, Jessekaran had met the accused and told him that he will get the funding to print the same as per his wishes. In 2005 a person called Baba had called on his mobile phone and said that he was calling from Killinochchi and invited the accused to come to Killinochchi. He had accepted the invitation in 2005 and visited the peace zone. Therefore the fact that he has been calling Killinochchi is true.

After the accused went to Thundikulam he had met Balathi, Father Karunarathnam, B. Balakumar, S.G. Thamilselvam and Balraj and the said persons have informed the accused of the political subjects. Balraj has stated of the war victories of the Tigers and that if the war starts again they were ready for war. Thamilselvam had said that the war may commence again due to political actions of Sri Lanka. The accused has returned to Colombo and reported in his magazine of what he saw in Killinochchi.

He has gone back in February and met Malawa, Ganeshnadan, Thamilselvam and the displaced persons who had come to Killinochchi. At one stage at 2006 Baba had offered money for the magazine and the accused had refused as they could continue with the magazine though they had financial difficulties. On three occasions in 2006 or 2007 Baba has sent money amounting to Rs. 50 000 each. Then I told him not to send money as it could create problems and he refrained thereafter.

The defense submission that Ven. S. Mahinda Tibetian, and Anagarika Dharmapala have also published statements that are informatory, did not mean that they would create communal disharmony.

If Baba had put money to his account after he said no, why did the accused withdraw the money? Therefore it is corroborated that he has accepted funds to publish their opinion and create conflict. The confession was accepted as voluntary on 09.05.2008 after the voir dire inquiry. Once the confession is voluntary the accused could be convicted on his confession alone. As per Morgan Vs Odhams, when a publication is made, the publisher should consider the nature of the reader. That means, how would a reasonable person read and react is what has to be considered.

The defense evidence is rejected as it has not been able to create any doubt on the evidence of the prosecution. Therefore I convict the accused on the 1st, 2nd, and the 3rd charges.

Date 31-08-2009

http://www.thesundayleader.lk/20090906/convicted.HTM

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Tissa judgement-part1-pg1-10

Tissa judgement-part2-pg11-20

Tissa judgement-part3-pg21-31

Tissa judgement-part4-pg32-42

Key points raised by Mr. Anil Silva, PC, lawyer for J. S. Tissainayagam, after the judgment and before the sentence (High Court 1, Colombo, 31st August 2009)

  • T maintains he is innocent
  • Although the state counsel mentioned minimum sentences prescribed by law, there is a Supreme Court judgment that allows discretion regarding the minimum sentence, and it is hoped the judge will consider this
  • T had exercised his right to freedom of expression under article 14 of the constitution
  • T was never racist – He was a Tamil that in the repression of late 1980s, worked with family members of the disappeared, and political leaders, against killing, disappearances of young Sinhalese
  • In the past, he had stood up for rights of workers in the place where he worked and lost his job.
  • And now, T had spoken up for oppressed people of his own community, Tamils, and he had lost his
  • There has not been any evidence of ethnic or religious disharmony or violence that he had incited by his writings
  • “Reasonable people” who had known and worked with T had testified in courts that they didn’t think what T had written will cause ethnic and religious disharmony or violence
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CHRONOLOGY OF EVENTS FOR TISSAINAYAGAM’S CASE

February 2008
Tissainayagam started news-website called OutreachSL.com using a grant from FLICT (Foundation for Local Initiatives in Conflict Transformation). FLICT is a Sri Lankan based grant making body funded by the international community (primarily the German government). FLICT funds civic and government initiatives including the government’s Peace Secretariat.

7 March 2008
Tissainayagam apprehended by TID (Terrorist Investigation Department) and all staff of the website were apprehended by the TID.

10 March 2008
Tissainayagam’s lawyers denied access to see him (the lawyer was denied access to Tissainayagam until the 21st of March)

19 March 2008

Tissainayagam filed a complaint before the Supreme Court, claiming that since his arrest he had been tortured, suffered discrimination because of his ethnicity and denied equal protection under the law. Four of the staff of the website released without charges being filed.

20 March 2008
Tissainayagam’s wife telephoned Director of TID to request permission to visit Tissainayagam at TID. Director of TID shouted at Tissainayagam’s wife in derogatory language saying that Tissainayagam’s wife could not see Tissainayagam now that a fundamental rights petition had been filed. After Mrs. Tissainayagam pleaded with the Director of TID, the director acceded Tissainayagam’s wife that she could visit the the following day with Tissainayagam’s lawyer.

21 March 2008
Tissainayagam’s wife and lawyer visited Tissainayagam. He was allowed to see his lawyer in presence of the Officer in Charge of the TID. He told his lawyer that he did not know why he was being held and that he was experiencing blurredness of vision.

27 March 2008
First hearing Fundamental Rights petition. The judge asked for the detention order the State counsel said they had detention order but not in their possession to be given to the judge and it was not given to the detainee but it will be produced later. The judgment was put off for the Chief Justice to make the order. The detention order was later issued to Tissainayagam that afternoon in custody, back dated to 7th March

31 March 2008

Second hearing. Document given to the judge by state counsel not disclosed to the defense counsel. State counsel said that Officer In Charge of TID has said in his affidavit that that the Tissainayagam had confessed to taking money from the LTTE. Defence Counsel not allowed to see document.

5 April 2008

Tissainayagam’s wife visited Tissainayagam. Tissainayagam asked OIC to meet Tissainayagam’s wife in private. OIC refused request saying that the investigations are ongoing. Tissainayagam’s wife asked if it was possible to meet in the hall along with the other families meeting their relatives detained by the TID, and the OIC just repeated that the investigations were ongoing. Tissainayagam has up until to date not been able to speak to his wife in private. OIC is always present and listening to conversation.

7 April 2008
Tissainayagam’s wife visited Tissainayagam at the TID. Tissainayagam informed his wife that TID had retaken Tissainayagam’s statement.

15 April 2008
Tissainayagam’s wife visited Tissainayagam at the TID. Tissainayagam informed his wife that TID had ceased to question him.

2 May 2008
Tissainayagam’s wife visited Tissainayagam at the TID. When Tissainayagam’s wife was leaving TID, an investigations officer IP Jayasuriya informed her and a friend who was accompanying her, that the investigations were over and TID had found nothing and they were waiting for ‘orders from the top’ to release Tissainayagam.

8 May 2008
Tissainayagam’s lawyers received OIC affidavit, and the Sinhalese translated copy of Tissainayagam’s statement. The original Tamil statements of Tissainayagam was not provided.

9 May 2008

Tissainayagam taken to eye specialist. Eye specialist said his eye condition changed needs new glasses and review every month.

12 May 2008

Tissainayagam was scheduled to be produced at the Magistrates Court, under the Emergency Regulations of 2005 but Tissainayagam was not produced. Emergency regulations state that a detainee should be produced every 30 days in front of a magistrate to ensure that no torture had taken place.

14 May 2008

Tissainayagam’s lawyers (this was only the second time lawyers were allowed to meet Tissainayagam) Tissainayagam’s lawyers visited Tissainayagam but were only able to talk to Tissainayagam in the presence of the OIC, who Tissainayagam has accused of torturing him.

22 May 2008
Third hearing. Tissainayagam’s lawyers complained that the OIC had been present during Tissainayagam’s client-lawyer conferences, and therefore the Tissainayagam could not advise his lawyers. They also requested the original Tamil statement. Judge ordered state counsel to produce original Tamil statement. Judge ordered that Respondent could not be present but other police personnel could be present during client-lawyer conferences. Next hearing postponed until 10 September 2008. No reasons for the delay in proceedings were given and there is no right to a speedy trial in Sri Lanka.

23 May 2008
Tissainayagam was scheduled to be produced at the Magistrates Court, but was not produced. Magistrate asked TID representing officer for Tissainayagam to be produced on 26 May 2008.

26 May 2008
Tissainayagam was scheduled to be produced at the Magistrates Court, but was not produced. Magistrate asked TID officer for Tissainayagam to be produced on 27 May 2008.
27 May 2008
Tissainayagam was produced at the Magistrates Court, TID legal officer said that investigations were not completed so they needed to further hold Tissainayagam. The magistrate ordered that Tissainayagam be produced on the 6th of June after his 90 days of detention.

6 June 2008
The TID defied the magistrate’s order of the 27th and did not produce Tissainayagam in court. Even though the magistrate gave the TID time till 4.30 p.m to produce him. Under emergency regulations of 2005 (these are the regulations that Tissa is detained under) Tissainayagam was scheduled to be produced after 90 days of his detention.

7 June 2008
Mr. Tissainayagam had been issued with another detention order extending his detention for a further 90 days from the 5th of June. No Charges have been filed against him.

13 June 2008
Tissainayagam was produced in court. His counsel held that he was held in wrongful custody as emergency regulations stipulate that after 90 days detainee must be moved to the custody of the fiscal not police custody. State counsel asked for time to consider and next date was given as of 23rd June.

23 June 2008
When the case was taken up in the Colombo Magistrates courts, Tissa’s lawyers pointed that Tissa was being detained illegally and the Colombo Chief Magistrate reserved the order for June 30th and asked the TID to produce him in courts on that date.

30 June 2008
Members of five media organizations staged a peaceful demonstration Monday around 10.30 a.m, demanding the release Tissanayagam in front of Colombo District Court. The Court extended the detention order served on Tissanayagam and two other Tamils, V. Jasikaran and Ms. V. Valarmathy until September 5 on request made by TID.

11 July 2008
The State Counsel, Parindra Ranasinghe, appearing in Tissainayagam’s wrongful custody case, admitted that investigations in the case had been complete last week, but that decision is yet to be made if the State is going to file charges against Tissainayagam. The Counsel requested from the Court for a further 47 days to make the decision. Tissainayagam has been held in custody for 126 days as of today.

30 July 2008
Colombo Additional Magistrate Ms. Malini Abeyratne ordered Terrorist Investigation Division (TID) police to submit the medical examination reports of Tissanayagam.

25 August 2008
The High Court refused bail for Tissainayagam on the grounds that he was charged under the PTA. He was charged under the PTA with 1) writing to bring discredit to the government and inciting ethnic and racial disharmony, 2) printing and publishing such material in the North Eastern Monthly between June 2006 and June 2007 3) Collecting money for the Northeastern Monthly from NGO’s.

29 August 2008
Counsels for Tissainayagam, S.Jaseeharan and V.Valarmathi who have been indicted by the Sri Lankan Attorney General under the Prevention of Terrorism Act (PTA) and Emergency Regulations (ER), informed the Sri Lankan Supreme Court that they were not seeking any interim relief as their fundamental rights violation applications have been listed for hearing on September 10 and November 14

8 September 2008

The International Federation of Journalists (IFJ) and its local affiliates in Sri Lanka launches an online campaign video condemning the arrest and indictment Tissainayagam, who passed his sixth month in jail on September 7.

26 September 2008
The hearing of 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.

04 October 2008

Cross-examined by the defence on the alleged confession made by journalist J. S. Tissainayagam, Assistant Superintendent of Police of Terrorist Investigation Division (TID) admitted that the TID had made a mistake when submitting the JMO reports in the case. Further trial was put off for October 6.

07 October 2008
At the conclusion of the cross examination of the Assistant Superintendent of Police Sri Lal Ranasinghe during the Voire Dire inquiry,  defence counsel Anil Silva stated in the Colombo High Court that the ASP had not been present at the time J. S. Tissaiayagam was made to write down his statement.

8 November 2008

Tissanayagam testified before Colombo High Court Judge Ms. Deepali Wijesundara in the inquiery to ascertain whether the confession made by him to the TID was a voluntary one or made under pressure and threat.

14 November 2008

Amnesty International (AI), urged Sri Lanka to release Tissanayagam.

17 November 2008

Mahinda Samarasinghe, Minister for Human Rights and Disaster Management, had visited J.S. Tissanayagam at the Remand Prison with the Prison Commissioner.

18 November 2008

Transfer of J.S. Tissanayagam to Magazine Prison in Colombo

28 November 2008

The Colombo High Court Friday reserved its order for December 5 on the Voire Dire inquiry on the admissibility of the purported confession made by Tissainayagam to the TID.

3 December 2008

Tissanayagam has been nominated for a media freedom award (“journalists who through their work, their principled stand or their attitude have displayed support for freedom of information.”) by Paris-based media watchdog Reporters Without Borders (RSF).

5 December 2008

Colombo High Court Judge Ms. Deepali Wijesundara ruled the confession made by Tissanayagam was voluntary. Next hearing on 18th December.


31st Aug 2009

Tissainayagam was sentenced to 20 years of hard labour by  Colombo High Court

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Articles produced in courts:

THE NORTHEASTERN MONTHLY July  2006
Editorial
Killings in the government-controlled areas of the northeast go on unabated. A day does not pass without reports of incidents in parts of the Tamil¬majority areas. With perhaps less frequency but to deadlier purpose have been the massacres: Puttur, Chavakachcheri, Allapiddy, Vengalai.
An article carried in this month’s The Northeastern Monthly highlights the culture of fear that grips the people of the northeast as they confront selective assassination, targeted precisely and with deadly intent. In Jaffna at least, the public is on record saying when a total war was being waged between the government and the LTTE they were adopting certain modes of security — even in the case of air raids — that proved sufficient.
In today’s context however, things are different. The target is the individual and the killer an individual too. The hunted live in the open, the assassin — hooded, sinister and without a name
— hunts till the victim is laid low. The fact that it is the individual that is earmarked for death has caused tremendous psychological and emotional pain to the people of the northeast.
The attendant problem is that the counterinsurgency campaign carried out by the government is so effective that no killer has been caught or charged. The killer remains the “unidentified gunman.” This problem takes on new meaning in an environment where a multiplicity of forces using violence as a means of achieving their target, operate.
This issue was eloquently put by someone who spoke to The Northeastern Monthli on the condition of anonymity: “A woman having love affair with EPDP cadre is killed, as much as the man who gives meals to the LTTE.”
The inability to protect its citizens within the areas it controls has caused Sri Lanka international embarrassment. This includes the ultimate opprobrium of being a failed state. These problems are only worsened when the military bombs and shells areas within the de facto control of the LTTE, but over which the Sri Lankan state persists in claiming sovereignty.
The question however is what is going to be the future of the Tamils of the government-controlled areas of the northeast. From around December last year they have become the sacrificial lambs in a war that is almost exclusively targeting civilian individuals.
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.
The people realising this are looking elsewhere for security — to some other organisation or body that will provide protection and play the role the failed state was supposed to play. But to their consternation there does not appear to be a viable substitute.
The LTITE has exhorted the people to rise up against their oppressor. That is because the four years of so-called peace has rendered nothing to the Tamils. But the upsurge among the civilians has brought upon them the wrath of the government.
The solution to this is not give in tamely to the state. It is that the LTT’E, which runs a state that is there in everything but in name has to devise a way of protecting Tamils living elsewhere in this benighted land of ours.
How the LTTE and the government come out in playing what is the niost rudimentary role of the modern state — providing security — will be an important strut in defining Tamil politics of the future.

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THE NORTHEASTERN MONTHLY Nov 2006
Even a modified Indian model will be ‘too little, too late’ for Sri Lankan Tamils

Page 18
By J. S. Tissainayagam

Soon after signing a memorandum of understanding (MoU) with President Mahinda Rajapakse’s SLFP, Rain! Wickremesinghe, head of the lIMP, said that both parties were interested in studying Indian constitutional arrangements as a way of resolving the ethnic problem in Sri Lanka.

On 28 October, the opening day of the recent peace talks in Geneva, government chief negotiator Minister Nimal Siripala de Silva spoke about, “A Sri Lankan model of devolution will be devised for an undivided country to address the root causes of this conflict,” but added, “It will also be a model which will be consistent with regional geo-political realities.”

Meanwhile, the Representative Committee of the All Party Conference (APC) visited India to study the Indian model of devolution. Soon after its return, head of the Committee Minister Tissa Vithana told the media very self¬ righteously that arrangements for the devolution of power in the Indian constitution were unsuitable to be grafted onto the Sri Lankan system, except with modification. Of the features in the Indian system that had caught the eye of the Sri Lankan delegation, he mentioned the structure of local government, or the panchyats.

To this writer however, the very fact that the APC believes Tamil aspirations could be satisfied, even by a modified form of Indian federal arrangements, is a strong signal of how miserly the Conference is going to be in its recommendations. Whatever modifications are contemplated, if the system of Indian federalism Is going to be the basis for sharing power in Sri Lanka, the Tamils can be assured it will be a repetition of ‘too little, too late.’

India has openly touted its constitutional arrangements to devolve power to the ethnic, linguistic, religious and tribal groups living in the vast subcontinent, as an appropriate prototype for Sri Lanka to emulate. In the past, Sri Lankan government officials were reportedly given ‘lessons’ by the Home Ministry in New Delhi on how Indian federalism worked,

The way whereby ‘the Indian model’ has quietly crept into public discourse, especially after the JHU reportedly agreed to it, demonstrates only too well that it is going to be the buzzword framing the debate on what will be the appropriate constitutional model to resolve Sri Lanka’s ethnic problem. (Udaya Garnmanpila, however, later denied the THU had agreed to the Indian model as a prototype, stating instead that his party had only expressed approval of the Indian constitution’s centralising features.)

Though it is fast assuming the proportions of a mantra in the south, it has to be said at the very outset that the ‘Indian model’ falls far short of what was envisaged in the Oslo Communiqué of December2002. The communiqué set down the principles of a settlement which were to “explore a solution to end the island’s conflict founded on the principle of internal self-determination in areas of historical habitation of the Tamil speaking peoples, based on a federal structure within a united Sri Lanka.”

Soon after the communiqué was issued, Lilt’s chief negotiator Dr. Anton Balasingham told the media approvingly, “It is, as far as the LTTE is concerned, in line with a regional autonomous model based on the right to internal self-determination of our people in the historical areas where the Tamil and Muslim people live. This model of self-government we were refining to has to be couched or properly conceptualised within an appropriate constitutional form…”
[TamilNet 05/12/02]

The Indian constitution has been called a great many things, among them “quasi-federal,” meaning that in its organising principles it has more centralising features than other constitutions, such as the U.S. constitution. By centralising features it is meant that the central government retains for it self powers, whereby it can impose control over the devolved units, (which in India are known as states). This is a far cry from Balasingham’s ‘model of self-government” or regional autonomous model”

The reason for the framers of the Indian constitution to favor a strong central government was fear of external threat. The constitution was drawn up soon after Partition and New Delhi knew it had a permanent enemy in Islamabad. India’s tendency to strengthen the Union only increased through the 1950s, as the threat from an emerging China burgeoned. But it must be said that despite fear of external threat, the Linguistic Recorganisation Commission was set up in 1955 due to the rice of linguistic nationalism thin India. The commission’s recommendations lead to the break-up of several existing states though due consideration was given to strengthening the unity and security of the country.

But in the case of Sri Lanka, from where does the external threat’ emanate? It is fairly obvious there is nothing of the sort. But strengthening the centre would also give more powers to Colombo and provide it a lever to continuously meddle in affairs of the devolved unit’s. This was commonplace in India too, especially under Prime Minister Indira Gandhi.

Central to the whole exercise of using the Indian constitution as a model is as to how its federal aspects, which are features of parliamentary government, are to be to be grafted on the Sri Lankan system that is presidential. The centralising features of the lndian constitution referred to above, depends greatly on an elected, bicameral legislature, with various safeguards and an activist judiciary. Sri Lanka on the other hand has a highly centralised presidential system, where the directly elected president is head of state, government and cabinet, as well as is commander-in-chief of the armed forces and appoints judges of the superior courts. What is also very important, is that none of our presidents, (despite one of them even giving an undertaking and a deadline to do so), has ever seriously thought of relinquishing the enormous powers they have enjoyed.

The Indian constitution ensures parliamentary supremacy by giving the central legislature very substantial powers, both during times of emergency and otherwise. These include residuary powers vested in parliament that provides for parliament to override state legislatures when there is conflict between their respective jurisdictions; a Concurrent List where, once again, parliament has powers to override the states, in addition to various provisions the two houses of parliament enjoy during emergencies and crises.

For instance, when an Emergency has been proclaimed, parliament has the right under Article 250, to legislate on any matter included in the State List, (which is the list of powers devolved to the Indian states), either for the entirety or part of India. Under Article 352 the central government also has exclusive power to determine when there is a national emergency. By usingArticle 250, parliament has widened powers of the central government on different occasions, including through the introduction of the 42~ Amendment (1976) that gives the government the right to deploy the military in any of the states, while retaining control over the armed forces.

Further, Article 356 allows the union government to intervene and take over the government of any state, a provision which has come to be known as ‘president’s rule.’ From 1950, president’s rule has been used more than 100 times, especially by Indira Gandhi,
to remove state governments from office under various pretexts.

Under Article 249, the Rajaya Sabha, (upper house) can make resolutions if supported by two-thirds of its members present and voting, for parliament to pass laws in the national interest on any matter in the State List. Such a resolution is however operational only for one year, and has to be renewed.

In addition to these powers, in the interest of further strengthening the centre, the President of India appoints the governors of the states, who remain creatures of the centre, and one of their important functions is to reserve bills passed by the state assemblies for consideration by the president. Additionally, the functions of the Finance Commission and Planning Commission also fortify the centre vis-à-vis the states.

All the above measures that ensure centralisation of power, including those of the president, revolve around the Indian parliament. And, it has to be acknowledged that despite the southern states claiming that a feature of the Indian Union is the domination of the South by the Hindi speaking states, matters never came to appoint where there was a substantial and sustained war against the Union demanding secession. Incipient tendencies towards secession were nipped in the bud by moves such as the linguistic reorganisation of states.

Political developments in post-independence Sri Lanka were quite different. It has been the long-held view of the Tamils that both constitutions promulgated in independent Sri Lanka did not have their consent. Consequently, they have looked upon parliament as an organ of oppression — of Sinhala hegemony that has curtailed their rights and liberties. In other words, parliament was not seen as an instrument guaranteeing equality between the Tamils (or Tamil-speakers) and the Sinhala-speaking majority. It was a feeling that the political system was unjust and biased against the Tamils that led to the Vaddukodai Resolution (1976) demanding a separate state, followed by an armed struggle from the 1980s towards the same objective.
One of the features of the Indian political system that appears to have won the admiration of Sri Lankan politicians is the ‘Panchyati Raj,’ an extensive and complex system of local governance. The need to recognise local level socio-political realities in India led to the demand for greater democratisation and access to power at the grassroots. The institutional arrangements that were created in response to this were the panchayats.

The panchayat system, which was the result of this demand for subsidiary, gave local bodies not only agency to facilitate local development, but also promote participatory democracy. They ushered into the Indian political structure multi-level federalism.
The objective of the panchyat system is to facilitate power sharing at the sub-state level, which consists of three tiers — village assemblies I urban municipalities, blocks and districts. All three bodies are elected with reservations for traditionally dis-empowered groups such as lower castes, tribes and women. In keeping with institutions functioning at a sub-state level, certain subjects that were hitherto under the purview of state governments were transferred to the panchyats; their revenue was ensured through grants by the central and state governments, while they were also permitted to levy local taxes. The control of finances also allows a degree of local planning through district planning committees.

There are two opposing theories on the efficacy of the panchyat system in India. One: it is nothing more than administrative decentralisation that seeks to delegate financial and administrative powers to local authorities. This perception is based on the reality that the panchyats derive their powers through legislation passed by the respective states. Further, Panchyati Raj is also seen as only nominally democratic because its mobilisation targets only the elites at the grassroots, and provides them with a channel to reach the top.

The opposing view is that panchyati raj does provide for subsidiary and local power-sharing that gives expression to grassroots political and social realities which cannot be adequately addressed through devolution at the state level.

What should detain us however is the attraction subsidiary has for members of the Representative Committee of the APC studying the Indian model. Why does it interest them? One reason could be because, traditionally, the southern political establishment has been favor of local (district) level devolution rather than to larger units — especially in the east — precisely because district-level devolution would hamstring the Tamils from taking decisions and compel them to depend on the Sinhalese and Muslims. (This was the reason the LITE had to ensure that district level political arrangements in the ISGA did not upset the regional balance.)

What about the Muslims? It is inconceivable that Muslim concentrations in the east will be satisfied with Panchyat level powers because there is a mismatch between what eastern Muslims now demand, and what any local level devolution traditionally offers. But on the other hand, the government might be proceeding on the basis that a panchyat system with certain modifications could work for the Muslims in a dc-merged Northeast Province We should also not forget that panchyat level power sharing will allow a say to the Sinhalese in the Tamil-dominated plantation areas.

While progressive centralisation has been the trend in centre-state relations in India, it does not mean there have been no attempts to review or arrest it. The Sakaria Commission was one such attempt that recommended the centre does not antagonise the states by proposing schemes on subjects exclusively under the purview of state governments. Similarly, the Indian Supreme Court ruled in 1994 that the discretion of the centre under Article 356 to dismiss state governments was qualified and not absolute.

Moves have also taken place to strengthen the Inter¬state Council (IC), which is a forum to address and resolve in the spirit of cooperative federalism, issues arising between state and state, or the centre and state/states. For instance, the IC agreed that residuary powers vested in the Union List be transferred to the Concurrent List, and that the centre consult state governmenth when dealing with legislation on subjects in this list. In keeping with the same spirit, the IC has also decided that the implementation of Article 356 be modified and the union government act less arbitrarily when declaring emergencies and do that in consultation with the state government/s concerned, especially when deploying troops.

While all these are remarkable moves that demonstrate India’s is a ‘living constitution,’ the vital issue is that the dominance of the centre over the subunits is woven into the very fabric and structure of the Indian State, unlike for instance, Switzerland. All the tinkering with the Indian constitutional provisions will not alter this fundamental fact.

Another basic issue that demonstrates the inadequacy of the Indian model being suitable to Sri Lankan conditions is the asymmetry in size between the federating units.

The Indo-Lanka Accord (1987), the l3thAmendment to the Constitution and the Provincial Councils Act were primarily designed to help power sharing between the Sinhalese, Tamils and Muslims. But if we were to look at the history of the provincial councils in Sri Lanka that have been in existence since 1988, one unmistakable feature has been a singular lack of interest among the Sinhala people for federalism. No doubt they would be happy with administrative decentralisation afforded by a delegation of power to a local level, but federal arrangements specifically designed to promote equality and social justice for all by sharing power with other communities has not kindled their enthusiasm.

One important reason-for this is the gradual homogenisation of Sinhala society with caste and regional cleavages becoming relatively less important than they were at the time of independence. Though conflict between competing religious groups within the Sinhala polity has recently intensified, religious minorities are, by and large, not territorially based, leading to territorial-based federalism, which the Tamils demand, not finding sustained resonance in Sinhala society.

“A desire for federal union among communities is a first and obvious factor which produces in them the capacity to make and work a federal union,” says K. C. Where in his classic Federal Governmen (1951). It is rather obvious there is very little interest among the communities of the South for federal union with the Northeast, but there is every reason to believe international opinion might force them towards it. On the other hand as stated above, the structure of Sinhala society is such that there are no competing interests within it that merit federal arrangements for more wholesome self-expression.

The upshot of this reality is that if Sri Lanka is to resolve its problems through federal arrangements, the federating units will be two, the Sinhala-dominated South and the Tamil-speaking Northeast. At the most there could be three units if the government succeeds in making the de-merger of the North and East permanent, but even if this unlikely outcome was to succeed, it des not substantially gainsay the following argument.

It is obvious that if such a union were to take place, the asymmetry in size, wealth, population, natural resources and other attributes between the two federating units will be a contentious issue. And for such a union to remain viable a number of measures will have to be adopted that safeguards the autonomy of the smaller unit to govern itself in the areas where the constitution gives it jurisdiction to do so. Where in reference to asymmetry between federating units says that it is undesirable for one or two units being too powerful that they overrule the others.

On the contrary, one of the main reasons for the Indian model of federalism to take on the contours it has is the multiplicity of ethnic, religious, tribal and other groups it embraces, scattered across 28 states and seven union territories. Even if the states are not absolutely symmetrical in terms of size, wealth etc, the very fact there are a multiplicity of units allows for a certain type of dynamic to operate that will never be present in any federal union in Sri Lanka between the South and Northeast, or even if the North and East were different political entities. The Indian states have interests that sometimes compete and at other times coalesce, allowing for an overall stability of the union-This being absent in Sri Lanka makes the Indian model inappropriate for emulation.

To top it all, when the Indian Union became a reality with independence in 1947, none of the federating units, either from the provinces coming under direct British rule or the princely states, had armies comparable to that of the LTTE’s today; nor did they have a record of belligerence with each other in British-occupied India as is the case in Sri Lanka. Therefore, is a quintessentially centralised federal structure as that of India’s, robust enough to absorb the military assets and personnel of a rebel army?

There are two problems that one envisages. (1) There will definitely be friction between the two groups because of a history of animosity and bitterness. Though it is not openly stated because of fear of repercussions, the fact remains the army is deeply suspicious of Karuna Group cadres despite the latter being deadly foes of the Tigers and an important part of military counterinsurgency operations in the East and Colombo. If this so of Karuna, how much difficult would it be to absorb L’JTE units into the Sri Lankan army or police. (2) Will the Tamils, knowing the record of the perfidy of successive Sri Lankan governments, be agreeable to the LTTE decommissioning weapons till they have total confidence that Colombo is prepared to observe and respect federal arrangements?

An optimist would say all the above arguments are without substance because the Indian system of devolution of power is only a mode! and not something to be imposed lock stock and barrel on Sri Lanka. But that view has to be contested. As mentioned in the beginning of this article, even the choice of a model is indicative of what the outcome of an exercise would be. And it can be said from the Tamil point of view that to use the Indian model as a starting point for devolutionary arrangements will be grossly inadequate.

When the government party and the leading party of the opposition strengthen their ties through an MOU, and as one of their first undertakings embark upon selecting a model to share power with the Tamils that has strong features of central control, one is forced to wonder whether Sinhala hegemonism is not only alive and well, but has received a boost through southern consensus.

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THE NORTHEASTERN MONTHLY July  2006

Page7


India’s concerns in worsening Sri Lankan situation

By J.S. Tissainayagam.

Though New Delhi has tried hard to keep up the subterfuge, nobody in Sri Lanka quite believed it. Despite all its protestations to the contrary, India has been intimately involved in Sri Lanka’s ‘peace process.’ At the same time it has also been making inroads into the island’s economy through investment and trade.

But of late, ever since the government of President Mahinda Rajapakse came to power, Delhi’s posturing has changed. It has been more forthright in its statements on affairs in Sri Lanka and is alleged to have admonished the Sri Lankan government hierarchy on more than one occasion on human rights violations and other such misderneanours.

India has also alluded to tile ethnic conflict as a symptom of the unfulfilled aspirations of Tamil people, which the Sri Lanka government was continuing to ignore by resorting to force. Though pointed references to the aspirations to the “Tamil people” is usually an attempt to define Tamil aspirations as distinct to that of the LTTE’s and thereby divide and rule, one has to admit it is an improvement on New Delhi’s usual equivocation.

There are a number of reasons for this change in the posture of the Indian government. One no doubt is the astuteness of the LTTE in pursuing its political goals. The Tigers’ judicious mix of politics, diplomacy and war such as the moves to marginalise the SLMM and selective use of force without having to be blamed for negating the CPA in its entirety, show their growing ability to negotiate the pitfalls of the international system. The response of the international community has been the now-predictable proscription of the Tigers by states and regional organisations, some of which, such as the European Union’s ban, the rebels have used to their advantage.

The second set of problems is connected to political developments in South Asia and the Indian Ocean. One of them has been the ability of the Rajapakse administration to successfully negotiate assistance from two countries that India considers its rivals in the Asian region— Pakistan and China.

Both countries have been responsive to supply Sri Lanka with military equipment in the past quite unlike New Delhi. While India has been undecided on the Defense Pact with Sri Lanka and limited its military supplies to non-offensive weapons — even its supply of radars to Colombo has met with stiff criticism in Tamil Nadu — both Islamabad and Beijing have been more forthcoming.

Second, though Delhi is supposed to have told Colombo that it is not worried from where it procures weapons as long as it does not affect India’s strategic interests in the region, the fact is that such procurements have to be seen in their overall context.

China’s growing interests in the Indian Ocean is well known. These interests are said to be twofold: (1) hemming in India by formatting a ring around its Asian rival, that is now cooperating with the sole superpower the United States for mutual benefit and (2) to develop strategic partnerships with countries in the Indian Ocean region in fear that expanding US interests in the Persian Gulf and the Indian Ocean might choke its (China’s) oil route from the Gulf.

Such strategic partnerships include involvement in projects that have both economic and military significance. For instance, China has pumped massive amount of finds into the development of the port of Gwadar on the western littoral of Pakistan on the Arabian Sea. Gwadar not only gives China a facility in close proximity to the Straits of Hormuz through which a large proportion of the world’s oil from the Persian Gulf passes, but is also a listening post to monitor US military and Other activity in the Gulf.

Gwadar is only one port in China’s strategic presence in the lndian Ocean it calls a ‘string of pearls.’ The other ‘pearls’ include Marao in the Maldives, the importance of which prompted New Delhi to increase its defense cooperation with the Gayoom regime including gifting a fast attack craft. Myanmar from which not only is Beijing purchasing oil and natural gas, but supposed to be using part of its territory as a listening post of Indian maritime activity in the Mdaman and Nicobar islands. Beijing also has a naval presence in Bangladesh and Thailand. Though these countries dot the Indian Ocean sea route from the Gulf to China, they also form a girdle around India. New Delhi’s fears of encirclement are only enhanced by China’s influence in the political developments of Nepal as well.

In Sri Lanka, China’s hand is not evident as yet of a strategic presence. However, Beijing has become more influential after President Mahinda Rajapakse ascended to power than before. Rajapakse, despite protests by the Catholic Church and others went through with the Noracholai power generation deal. The Chinese are also deeply involved in the developing the Hambantota port. Hambantota opens onto the sea lanes south of Sri Lanka where a substantial volume of sea traffic both commercial and military bound eastwards passes.

Increasing Chinese presence in the Indian Ocean, which New Delhi considers as part of its sphere of influence, the purchase of weapons from by the Colombo regime from Pakistan, seen in conjunction with the LTTE’s deft maneuvering of the international system could be why India is becoming more vocal in Sri Lankan affairs.

However, New Delhi’s uneasiness about the situation in Colombo is not such that it is willing to go along with the donor co-chairs to the Sri Lankan peace process in finding a solution to island’s ethnic problem. Since India regards Sri Lanka as being within its legitimate sphere of influence, it is not happy where it is forced to cooperate with die co¬-chairs (US, EU, Japan and Norway), all which are firmly established as part of the western bloc. New Delhi wants to go it alone. Besides, the co-chairs are pushing the Oslo Declaration as the constitutional basis of a settlement, which favors regional autonomy, whereas India is happier with the Indian federal structure, as prototype for a settlement in Sri Lanka.

India is using the refugee situation in Tamil Nadu as a way whereby it could resume a more comprehensive involvement in the affairs of Sri Lanka — especially the northeast. And it is using Tamil Nadu leaders rather than those of the central government to whip up sentiments about the displacement from northeast, while seeing to it that things do not go out of control as it did in the 1980s.

Muthuvel Karunanidhi, leader of the DMK and the chief minister of Tamil Nadu speaking to the Indian Prime Minister Manmohan Singh and Indian National Congress leader Sonia Gandhi said that he had told Arumugain Thondaman: “The central government’s policy (on Sri Lanka) will be the (Tamil Nadu) state’s policy.”

Says M. R. Narayanan Swamy, well-known political analyst and author of a study of LTTE Leader Velupillai Prabhakaran Inside an Elusive Mind, “What was left unsaid (by Karunanidhi) was if New Delhi considers the… LTTE a terrorist outfit, or draws a distinction between the Tigers and the Tamil people, then that will be Tamil Nadu’s view too” (IANS 06.06.06).

New Delhi has been indeed drawing that distinction — in fact in the past it has cautioned Sri Lankan leaders that the just aspirations of the Tamils have to be met. What is more, it has also been promoting the anti-LTTE Tamil groups such as Karuna’s TMVP, the EPDP and the EPRLF (Vàrathar Group) as part of a ‘democratic alternative’ to the LTTE. These groups are paramilitary units working with the army, while the EPDP has a toehold in parliament as well. They have the support of the Sri Lanka government too to emerge as a contending force to the Tigers, hoping the low intensity war in the northeast weakens the latter.

A consideration paramount in Indian thinking is that frill scale military conflict should not commence soon because it could result in the LTTE taking the upper hand through military conquest that will undermine New Delhi’s plan entirely. Therefore, it is in the interest of Colombo and Delhi to foster a low intensity conflict, compel refugees to become an issue in India and use the disenchantment created by continued killings of individuals, including Tamil civilians, to emerge as apolitical and existential problem in the northeast. It could give the space for New Delhi to move in through its anti-LTTE proxies.

On the other hand, thinking is said to be evolving within South Block and elsewhere in the Indian establishment that the Tigers are too powerful a force and too well entrenched in power, at least in the north of Sri Lanka, to be dislodged by Colombo and its Tamil cronies-This school of thought believes that dialogue between the LTTE and Delhi has to become a reality. However this school remains a minority.

An impediment for a more favorable impression of the Tigers is-the negative perception they have among influential sections of the Indian population, mostly due to the media. If such a mindset has to be changed the air surrounding the assassination of former Indian Prime Minister Rajiv Gandhi has to be cleared. LTTE chief negotiator Dr. Anton Balasingham has said that his words to NDTV on the expression of regret over the assassination of Rajiv Gandhi were misquoted. It is true perhaps. But strangely, one feels that it might have set in motion a process.
The sinister design behind Karuna’s child recruitment drive

The Karuna group’s recent drive of recruiting children after abducting them from the government—controlled areas in the east has a design far more subtle than merely replenishing its cadre. The exercise is also a sinister form of achieving the political and social legitimacy the group is desperately looking for from the people of the east.

In the wake of the parents’ tearful appeal that their children be released the group has said they will allow the parents to meet the new recruits but that they might have to come to the camps the group is running in the government-controlled areas of the east.

The meeting is to take place on the day the child cadres’ training comes to an end and during the passing out ceremony. The Karuna group hopes to transport the public to their camp and capture their arrival on video. It is hoping to then use the video, without showing the context in which it was taken, as popular endorsement the group is getting from the eastern public.

The fear however is that the LTTE will be lying in wait for the young recruits. The moment they are mobilised the LTTE, as it does to other cadres of the Karuna group, will hunt them down. There is going to be mayhem in the east.

But it appears Karuna hopes to turn such tragedy too to profit. I-Ic is hoping that the LTTE will actually kill his new recruits — at least some of them — because he could turn the tragedy into a public spectacle of mourning thereby adding support to his cause as well as to the LTTE’s discomfiture.

It is this sinister design of augmenting ‘support’ that has led the Karuna group to even agreeing to meet representatives of TJNICEF on child soldiers. The renegade and his followers have designs that have much greater import than merely acknowledging abductions and negotiating their release, or for that matter replenishing its cadre.

What is also interesting is that this bizarre tactic of demonstrating support was undertaken by the Tamil National Army (TNA) in the late 1 980s. The TNA was a rag-tag-and-bobtail armed group raised by the IPKF to offer protection to the then North and East Provincial Council (NEPC) government from local cadre. The identical fate that befell them awaits Karun’s child recruits too.

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Tissanayagam indictment 13.08.08. In Sinhala- read as a PDF

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Tissa WS – Written Submissions for the Accused J. S. Tissainayagam; read as a PDF

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Voir Dire submissions on behalf of Tissainayagam

The prosecution (State’s) position is that Tissainayagam had told the Director TID Nandana Moonesinghe that he wanted to confess to his crimes and that the Director TID had told the ASP S. A Ranasinghe to facilitate this. According the ASP Ranasinghe’s evidence, he summoned Tissainayagam to him and asked why he wanted to see him and Tissainayagam had said that he wanted to make a confession on the 7th of May.
Then the ASP had cautioned him that it will be used against him as evidence, read and explained to him all the relevant laws pertaining to making a confession and sent him away to think about it and asked Tissainayagam to come back to him on the 9th of May. On the 9th of May when Tissainayagam was summoned again, Tissainayagam had told the ASP that he still wanted to make a confession. The ASP had cautioned him and read and explained to him all the relevant laws again and then was preparing to get his confession typed when Tissainayagam had insisted that in no way did he want his confession typed but that he wanted to write it in his handwriting himself.

Prosecution began its submissions by stating that challenging a confession was very easy for the defence because the law says a confession must only “appear” to the court as being not voluntary and there was no need to prove it beyond reasonable doubt.

The position of the prosecution was that the defence had no clear stance on where the “confession” was taken. First the defence lawyer said that it was in front of the OIC with officer Razeek, then that Razeek forced him to write it in the ASP’s room when the ASP was not present and then the Accused himself said that Razeek forced him to write it in the room the accused was kept in. Therefore the defence was confused where it happened. Also during the cross examination of both the ASP S. A Ranasinghe and the typist that typed the cautionary statement on the 7th of May all the defence was able to make the court understand was that there were typing errors in the cautionary statement of the 7th and the 9th of May. “We all know typing errors can be easily made, especially when there are no qualified typists. We spent the last half an hour correcting court proceedings. The court has the most qualified typists. So obviously unqualified typists will make more mistakes”.

“It is because of this that we felt that calling other witnesses is a waste of the court’s time. After all he wrote it in his own handwriting,” said the State Counsel.

The prosecution also stated that the accused in his testimony had said that Zubair and Razeek had threatened him and that he was afraid of going blind if the threats were carried out but that the accused had travelled to the uncleared areas.  According to the prosecution, it was obvious that the accused was lying because everyone knows that travelling to the uncleared areas is a difficult journey which would have also affected his eye condition.

The prosecution also stated that the accused had said he saw his collegue Jasikaran crying and beaten up on the 9th of May before Tissainayagam made his “confession”. It was clear from the JMO Mayurathan’s  evidence that these wounds could have occurred after the 11th of May when JMO Juzar saw Jasikaran and reported Jasikaran had no wounds. The prosecution also said that before this even when the accused saw his lawyers while he was in TID custody the accused had not complained of threats. Therefore it was clear that the accused was lying.

The prosecution concluded that everyone knew Tissainayagam was an able writer. Also everyone knew that in Tamil there are different dialects, Indian, Jaffna Tamil etc and therefore he could have hinted in the “confession” by adding a word in whenever he could to say that he was under duress. After all Razik was a muslim and would not have understand all the dialects of Tamil so it was easy for Tissainayagam to introduce words hinting at his duress because Razik would not have understood it.

Therefore it is clear that Tissainayagam was lying when he said he was under threat and it is clear that he gave his “confession” voluntarily by his own free will.

The defence in their submissions said that it is clear that the law says that it only has to “appear” to the court that it any “confession” was not voluntary and there was no need to prove beyond reasonable doubt. Defence Counsel said this was allowed by the law because “confessions” are not permitted under normal Sri Lanka law. It is only permitted under the PTA and Emergency Regulations. Therefore under the PTA and the Emergency Regulations the safeguards that comply with the doctrine against self incrimination are taken away and the only protection one would have is the fact that the probability of proof is that it should only “appear” to court. If the probabilities of proof were much higher one would have no protection at all.

The defence stated that one must take note why police evidence – especially that of confessions given in custody is suspect it is  because as was quoted in the case of the Queen Vs. Gnanaseela Thero  -“what goes on beyond the closed doors of a place of detention…” the court is not able to determine. Therefore the environment that such detainees are kept in must be a taken into account when determining the voluntary nature of a confession.

In other cases even confessions given to magistrates have been determined to be not voluntary because the person who gave the confession has been sent back to the place of detention. Therefore as had been determined in the case of Columbo Vs. the State of Connecticut “the prisoner knows that he will be held at the mercy of police without proper judicial oversight and runs the risks of the suspension of the ordinary law of the land and the unusual length of custody.” It because of this reason that “confessions” even given to such high authorities as that of the magistrate has been dismissed in courts of law.

Given the above context, the environment that Tissainayagam was kept in must be observed.

The prosecution had earlier pointed out that Tissainayagam had been treated well, the defence counsel said.  The defence counsel said the accused himself had given evidence that first he was given a bed and a pillow and then the bed was taken away and finally the pillow as well. The defence counsel said as in the Case of Columbu Vs. the State of Connecticut “the thought of the little kindnesses that had been given could be taken away” is an inducement to persuade the detainee to say as those detaining him would wish him to say, in order to avoid any evil that could come to him.

Tissainayagam was kept in the intelligence unit where other detainees were brought, questioned and assaulted. He heard and saw the pains of other detainees and rubbed balm over their swollen joints at night to ease their pain. He was threatened at the very beginning of his custody that he would be slapped so that one ear would come out of the other ear. He knew this to be a real threat because of what was happening to others he also knew that if this threat was carried out unlike a normal person who could sustain a very hard slap that he could not. If he got any such hard blow to his head he could go blind. He had no private access to lawyers. Tissainayagam in his testimony said that he had seen his lawyers at the TID always in front of the first accused of his Fundamental Rights Case, OIC Prassanna De Alwis or otherwise in the presence of the ASP S.A Ranasinghe.

It is in this environment that Tissainayagam gave this statement to the TID, said the defence counsel. The TID knew that he had a serious eye condition and had on the 9th of May taken him to the Eye Hospital. Tissainayagam also saw his colleague Jasikaran beaten and crying.

The defence counsel said that if it was as the prosecution said, and that Jasikaran had not been tortured on the 9th but between the 11th and the 27th of May when his wounds were recorded, it may be true. But while questioning the date of when the torture took place the prosecution did not dismiss the fact that the torture had taken place.

Then the prosecution jumped up and objected saying they never used the word torture when questioning the JMO. The defence said that the prosecution did not use the words self inflicted wounds either and the JMO had said Jasikaran was assaulted with a “blunt weapon” and the prosecution had not countered the JMO’s evidence or his stance that Jasikaran was assaulted. Therefore, even the prosecution had admitted that Tissainayagam was kept in place that torture occurred.

The defence added that from the beginning the prosecution had refused to admit the JMO’s report where Jasikaran’s torture was recorded. First the prosecution had said it was not relevant to this case. Then after the defence brought the registrar of the Supreme Court as a witness the prosecution admitted that it was relevant to this case but that without the JMO himself being present the JMO’s report was subject to proof. So therefore even though the JMO Mayurathan was not a witness in this case and it could have been detrimental to the case of Jasikaran where the defence counsel is not a counsel. The defence counsel Anil Silva got the permission of the defence counsel of Jasikaran’s case and called the JMO as witness. The JMO gave his evidence saying the assault could have taken place on the 9th and that his observation on the 27th of May that the wounds were old wounds not that had occurred recently but within two weeks as it was greenish brown in colour when the JMO saw it. It is only after the prosecution submitted the JMO report of a Dr. Juzar that the JMO Mayurathan said that it was possible for the wounds to have been inflicted not on the 9th but after the 11th. It is interesting that the prosecution who thought that the JMO report of Dr. Mayurathan was subject to proof and needed  the oral evidence of Dr. Mayurathan did not feel that the same about the report of Dr. Juzar and therefore did not call Dr. Juzar as a witness even though they had no problem in calling this witness. Therefore it must be understood that there is no proof that Dr. Juzar had examined Jasikaran. Given that there is no proof it must be noted why Jasikaran who on May 27th came to the Magistrate’s court and said that he had been subject to torture told the JMO that he was tortured on the 9th of May. “What difference would it have made to Jasikaran if he was tortured on the 9th or the 11th?  Therefore if he said 9th it must be true because we have no evidence to the contrary,” the defence counsel said.

The second point that the defence counsel submitted was that for a confession to be admissible under the PTA it should be made in front of a police officer not below the rank of the ASP.  The defence said that despite the prosecution saying that the defence had no clear stance on where the statement had been written, the defence had always had a clear stance saying that the “confession” was never written in front of an ASP. Not withstanding the rather unusual action of a sane man who is not a lawyer grabbing the pen of the ASP (as per ASP’s oral evidence)  and insisting that he write his confession in his own hand, the moment it is explained to him that this very same confession would be used against him in a court of law, the defence has seen other flaws in the ASP’s story, said the defence counsel.

The defence countered, that in the ASP’s evidence the ASP said that he had read a gazetted notification to Tissainaygam and that Tissainayagam had signed this gazette notification saying he understood it. Yet this gazette with Tissainayagam’s signature on it had never been submitted to court. Therefore it is clear that no such gazette with a signature of Tissainayagam exists and the ASP has led the court astray said the Defence.  The ASP did not say there were typing errors, he said that he had seen Tissainayagam on two different days and therefore on 7th of May  Tissainayagam looked Tan in complexion on the 9th of May he was dark as was typed in the two cautionary statements. Given this evidence, complexion is a perception and one does not change colour so quickly within the space of two days, in a confined environment. Therefore it is clear that the ASP had not seen him and that the fact that two different complexions had been typed in because it was the perception of two different typists who typed up the two cautionary statements.

Also the cautionary statement on the 7th and the cautionary statement on the 9th are identical. If the ASP  told Tissainayagam to think about giving a confession and return on the 9th (as the ASP said in his evidence) when Tissainayagam returned to the ASP on the 9th it is highly unusual that the ASP should introduced himself all over again and ask Tissainayagam why Tissainayagam had come to see him when in fact Tissainayagam had come to see the ASP at the ASP’s own request. When the ASP was cross examined about this he said that all that was said to Tissainayagam on the 9th was not typed. Therefore, from this evidence we have to conclude that either the instances when Tissainayagam were threatened were not typed up or the ASP was not present and none of this happened. Two typists simply typed up the standard cautionary statements.

Also the time of the cautionary statement was changed, and the defence’s position was that the time was changed because Tissainayagam could not have been listening to a cautionary statement because he was meeting his wife in front of the OIC. If the defence was wrong then the prosecution should have submitted the books to show that Tissainayagam’s wife was not present in the TID around that time. The prosecution did not show this evidence. The ASP said in his evidence that typing errors could not be rectified without stringent process of having several police officer look into it  and that is why the name of the accused was not rectified. Yet the typist of the 7th gave evidence that the ASP himself had changed the time with his own pen without a  stringent process. “If the time was changed without a stringent process why could the name not be changed?” .  There was also no signature of Tissainayagam on the cautionary statement of the 7th of May therefore collaborating Tissainayagam’s statement that he never had a cautionary statement read out to him on the 7th of May, said the defence.

There is no signature of Tissainayagam’s on the cautionary statement of the 9th as well. Tissainayagam had simply signed what he was forced to write not the cautionary statement that was typed above it.

The defence also said that key witnesses to the ASP Ranasinghe’s statement that the ASP was present on the 9th when Tissainayagam ‘s statement  was written– the typist on the 9th and the translator Naseem was not called. If they had been called they should have collaborated that the ASP was present on the 9th. The fact that they were available, listed as witnesses and not called leads the defence to believe that as in the case of the Queen Vs. Gnanaseela Thero the calling of these witnesses would have been detrimental to the prosecution. The prosecution said that it thought it was a waste of the court’s time to call other witnesses, but if that was the case why did the prosecution call the typist who was there on the 7th and not on the crucial day of the 9th when the statement in question was actually written?

Therefore as there were many occasions for the prosecution to rebut the defence’s position and yet it chose not do so, clearly indicates that the defence’s position that there was no ASP present when this statement was written and that this statement was written involuntarily is true. From the ASP’s own evidence the ASP said that he did not think that the confession was important. It is clear from this that the TID only relied on the fact that Tissainayagam had been made to write his statement in his own handwriting to prove to the court that he did it voluntary. They did not feel the need to follow any procedure.

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Tissainayagam:  I always agitated against violence, fought for justice for oppressed

Tissa’s statement to the courts

Full text of Tissainayagam’s statement to the Court follows:

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 Englishand 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 the Amnesty International and the UN.
* Vasudeva Nanayakkara and HE Mahinda Rajapakshe 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 conditions 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 co operated. 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 the 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 Vanni 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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