Convicted

   Two articles and a confession: 20 yrs RI 

A Summary of the 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. 0773059503 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