articles and a confession: 20 yrs RI
Tissainayagam on the day he was
convicted on August 31, 2009
to 20 years RI
A Summary of the Order
Journalist Tissainayagam was indicted in the
High Court of Colombo on the following offences…
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.
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.
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
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.
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.
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.
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.”
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.
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.
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.
witness Nishantha Pushpalal had said in evidence that he
has raided the premises No. 313 of
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.
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
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.
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
Colombo has had connections with the northern area.
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.
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.
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
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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
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.
defense submission that Ven. S. Mahinda Tibetian, and
Anagarika Dharmapala have also published statements that
are informatory, did not mean that they would create
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
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