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The collective conscience of the silent majority in Sri Lanka

by Kishali Pinto Jayawardene, 14 September 2009

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Scrutinizing the Tissainayagam judgment this week indicates two primary points that define current parameters in regard to freedom of expression in general and freedom of the press in particular in Sri Lanka.

First, the government used the standard of the ’ordinary or reasonable man’ to contend that the writings in issue constituted an incitement to communal hatred among communities or racial and religious groups, as prohibited by Section 2 (1) (h) of the Prevention of Terrorism Act, No 48 of 1979 (as amended) read with Sections 113(1) and 102 of the Penal Code. This argument was accepted by court citing cases on defamation decided by the English courts in 1940 and 1971 applicable primarily to the context of individual reputation being affected. The impugned writings in the little known North Eastern Monthly alleged in July 2006 that the government was not offering adequate protection to the Tamils in the North with the state security forces being the main perpetrator of killings and in November 2006, that the population of Vaharai is being depopulated and starved by the government refusing them food as well as medicines and fuel.

The ’ordinary man’ standard

The truth of the second allegation in particular was disproved by the evidence of an officer of the Human Rights Commission, called as a witness for the defence who later turned hostile. The credibility of this allegation is, of course, highly contested. Regardless, the applicability of standards measuring defamation to an offence as vaguely defined as incitement to communal hatred between communities or racial and religious groups, (which rule incidentally would find many of the government’s own propagandists guilty in several respects), will undoubtedly be pressed in appeal. The application of this general standard to the readership of a little known magazine read not by the general citizenry but by a selective category is an allied question. Though a Buddhist priest, lawyers and a politician were called as witnesses for the defence to testify that the writings could not be construed as incitement to communal hatred, these opinions were dismissed on the basis that the individuals in question subscribed to a particular opinion in regard to the war and did not reflect the ’ordinary man’ standard. The contrary (and apparently single) opinion of the defence’s hostile witness was accepted.

Conviction upon a confession

Secondly, the conviction of the accused under Emergency Regulations on the third charge of obtaining money from an LTTE source to run this little known magazine, rested primarily on a confession. This was alleged by Tissainayagam to have been coerced. The trial judge also used the fact that two payments of Rs 50,000 each had been deposited by anonymous persons into the relevant bank account in March and April 2007 to mean ’invariably’ that the depositers were not readers or subscribers but rather terrorist sources.

This conviction on the third charge also raises some relevant points of discussion. As has been long critiqued in similar cases, the accused has the burden to prove the fact of coercion under the PTA and relevant emergency regulations, virtually an impossible task. In this case, it was alleged that the purported confession was, in any event, tampered with which allegation was not accepted by the trial judge. Interestingly, the case law cited in this respect includes the late Justice Mark Fernando’s individual opinion in Nagamani Theivendran v. the Attorney General (SC Appeal No 65/2000, SCM 16.10.2002 separate judicial opinions by Justices Ismail, Fernando and Wigneswaran) in which the undoubtedly conservative view was taken (as contrasted to Justice Fernando’s general thinking in regard to the protection of individual liberties), that a conviction upon an uncorroborated confession under the PTA or any other law was lawful and proper.

The ’manufacturing’ of confessions

Though only Justice Fernando’s opinion is cited by the trial judge in the Tissainayagam judgment, Theivendran’s Case however exhibited a sharp division of judicial opinion on this point between Justice Fernando and Justice CV Wigneswaran who wrote a separate 26 page opinion contending strongly that ’the general civilised law of the country frowns upon the admission as evidence, of confessions to police officers’ given the fact that (as remarked previously) the dangers of ’confessions being ’manufactured’ in police stations through physical or mental intimidation. It was also observed that such admittance by a ’politically motivated law, (ie the PTA), was contrary to Sri Lanka’s obligations under the International Covenant on Civil and Political Rights (ICCPR).

Apart from the division of judicial opinion on this point, both judges agreed with Justice Ismail that, the reliability of a confession must be most rigorously tested against the evidence and surrounding circumstances. In that particular case, the confession was held as not being ’sufficient and trustworthy’ to convict the accused. The Court of Appeal, which had affirmed the High Court’s conviction based solely on a confession, relying on its earlier precedent in the Singarasa Case, was held to be in error. While the question as to whether this test was satisfied in the Tissainayagam Case remains to be decided on appeal, this most recent High Court judgment highlights anew the importance of a definitive judicial ruling settling the applicable law on this point.

Calling for reconciliation

This judgment should be subjected to more detailed scrutiny which is not possible in this column due to space constraints. However, from a wider perspective, this pattern of the use of anti terrorism law as an instrument of media repression needs to stop now. We saw similar patterns in regard to the use of criminal defamation provisions which was halted only with the repeal of those provisions. Surely we have learnt from those mistakes? A radical change needs to take place in our thinking in regard to the need for reconciliation after conflict. The collective conscience of the silent majority in this country compels this.