This is the first time that anti-terrorism laws have been used in Sri Lanka to prosecute and convict a journalist for exercising freedom of expression, despite these laws being on the books for decades. The ICJ appreciates the cooperation of the Government of Sri Lanka and the presiding judicial officer in enabling the Observers to attend the trial, meet with the Attorney General and with Mr Tissainayagam and his counsel, and generally conduct their work without interference.
The Trial Observation Report focuses on describing the procedural aspects of the case and does not include a substantive assessment of the anti-terrorism laws. It raises a number of concerns regarding fair trial standards, including the judge’s interlocutory decision to allow into evidence what counsel for Mr Tissainayagam described as a forced confession, and subsequent denial of the accused’s right to appeal this decision. The Observers also expressed concern that Judge Wijesundara is the sister of the officer who signed the Indictment against Mr. Tissainayagam. While outside the general scope of this report, the Observers raised broader concerns about the Government’s unprecedented decision to prosecute Mr Tissainayagam on terrorism charges, especially in the context of attacks and threats of attacks against journalists and critics of Government policy, including public accusations by persons associated with the Government that equate such critics, and the lawyers representing them, as terrorists and traitors, for example, in commentaries posted on an official website of the Ministry of Defence, Public Security, Law and Order.
The ICJ has previously highlighted the dangers to rule of law posed by Sri Lanka’s broad array of draconian emergency laws (see Briefing Paper: Sri Lanka’s Emergency Laws (March 2009), http://www.icj.org/news.php3?
“The real damage of the Tissainayagam case does not lie only in one judge’s interpretation of the law, but in the fact that the legal system is now seen as carrying out a political agenda of criminalizing anti-Government speech,” stated Roger Normand, ICJ Asia-Pacific Director. “That the Government has chosen to aggressively pursue this case against a prominent Tamil journalist even after the conclusion of the military conflict sends a chilling message of political intolerance and casts doubt on its commitment to justice and national reconciliation.”
Mr. Tissainayagam was arrested by police from the Terrorism Investigation Division on 7 March 2008. Three months later, on 25 August, he was charged with three counts under the Prevention of Terrorism Act 1979 (PTA) and the Emergency Regulations 2006 (ER 2006), in relation to his criticism of the Sri Lankan Army’s treatment of civilians in two articles published in North Eastern Monthly magazine in June 2006. Following
High Court proceedings observed by the ICJ in 2008 and 2009, Mr. Tissainayagam was found guilty on 31 August 2009 of two counts of intending to “cause communal disharmony” (PTA, s.2), with mandatory minimum sentence of five years each, and one count of receipt of monies “in the furtherance of any act of terrorism” (ER 2006, reg.6), with mandatory minimum sentence of 10 years. In total he was sentenced to 20 years rigorous imprisonment.
“The protection of national security and public order is a legitimate aim, but the Government in this case relies on emergency and anti-terrorism laws that are vague and over-reaching, when international law requires that they be precise and strictly necessary,” emphasized Wilder Tayler, Acting Secretary-General of the ICJ. “Where the Government’s intent is to punish expression, as in the case of Mr. Tissainayagam, there
must be a direct and immediate connection between the expression and likely violence and the intent to cause such violence.”
Sri Lanka is a state party to the International Covenant on Civil and Political Rights. Restrictions on the right to freedom of expression on the ground of national security, as contained in Article 19 (3) ICCPR, must be:
- provided by law, with sufficient precision to enable citizens to comply with the law; • necessary to protect a legitimate national security interest;
- the least restrictive means possible to protect that interest; and,
- compatible with democratic principles.
“The independence and professionalism that has characterized the Sri Lankan judiciary for decades is being undermined by reliance on overbroad security laws that threaten fundamental rights,” stated Roger Normand, ICJ Asia-Pacific Director. “At the heart of this case is whether the Government of Sri Lanka will abide by the rule ‘of’ law or choose to rule ‘by’ law through unjust measures exemplified in the PTA and Emergency Regulations 2006.”
During the brutal decades-long war, the Liberation Tigers of Tamil Eelam practiced violent suppression of dissent. To effect genuine national reconciliation, the ICJ calls on the Government to reverse the attitudes of distrust between communities by relying on rule of law to uphold basic freedoms on an equal basis for all citizens, rather than using emergency laws to cast a wider anti-terrorism net.
-11 September 2009
