A SYMBOL OF SUBVERSION OF THE LAW

Kishali Pinto-Jayawardena,
September 5th 2009,
Focus on Rights', The Sunday Times

It was a week dominated by the unprecedented sentencing of senior journalist JS Tissainayagam to twenty years hard labour under the Prevention of Terrorism Act (PTA) No 48 of 1979 (as amended) and prevalent Emergency Regulations for the writing of two articles in a journal some years back. A third charge related to the obtaining of funds to run that journal, thereby constituting the collection of monies for the furtherance of terrorist acts.
In this manifestly tragic drama, there was still time to marvel at the exact comedy of the Ministry of Foreign Affairs' claims that President Mahinda Rajapaksa cannot pardon Tissainayagam at this stage until the legal process was exhausted. It was further asserted that the widespread condemnation, both domestic and international, was an attempt at "undermining the independence of the judiciary of Sri Lanka." Clearly the terminology used by the Ministry hinted at the use of contempt of court powers.
The matter of a presidential pardon
In the first instance, those responsible for writing these press releases at the Ministry are well advised to acquaint themselves with the relevant provisions of the Constitution, namely Section 34(1) which grants the President the power to pardon any offender "convicted of any offence in any court within the Republic of Sri Lanka."
Mark in this regard the significance of the term 'any' in this constitutional provision making it clear that the question of presidential pardon does not limit itself to the stage of final appeal. Among other cases in this respect, recently, President Mahinda Rajapaksa himself pardoned CWC leader Arumugam Thondaman in 2008 after Thondaman was found guilty of contempt of court and imposed a suspended sentence by the Nuwara Eliya Magistrate. So, the question then becomes appropriate; is the Ministry then taking upon itself the power to limit the constitutional authority of the President?
This matter of a pardon is, of course, by the way. Tissainayagam has not himself asked for a pardon. The granting and acceptance of a pardon implies that the offender has accepted the fact of his or her guilt and the applicability of such to this case is not all that easy.
Contempt of court
A critique of the decision by the High Court on the basis of which Tissainayagam was sentenced, must await detailed scrutiny of the decision itself. However, the point must be made - and made strongly at that - that such critiques cannot offend the principle of contempt of court if they are based on a valid and reasonable examination of the legal basis on which the judgment had been delivered.
It is precisely for the purpose of meeting such absurd attempts at stifling freedom of expression, where ordinary folk are at sea on the parameters of the law that a draft Contempt of Court Act was approved by the Bar Council of the Bar Association some years back and sent to the government. This specifically stipulated that fair and reasoned criticism of decided judgments (even of the lower courts) do not amount to contempt of court. A similar stand has been taken by others, including the Editors Guild of Sri Lanka and the Human Rights Commission of Sri Lanka (in its previous term).
This principle is not, by any means unusual. It is followed as a matter of fact in countries such as India and the United Kingdom. In developed jurisdictions, a claim that fair critique of a judgment of a lower court would amount to contempt would invoke extreme hilarity if not amazement. We, on the other hand, still continue to struggle with this most basic right of free expression and opinion, forcing many analysts to tiptoe around issues that should be discussed forcefully, angrily and honestly
Symbol of subversion of law
But to revert to the central issue of the Tissainayagam case and more particularly the fact that his defence counsel was absolutely right when he warned in court that the fate which had befallen his client was directed at every other critic of this government. In other words, what we have here is a symbolic and highly potent warning, restricting even the remaining and terribly narrow spaces that exist to speak freely and write freely. The wide range of weapons used in this respect includes not only the detaining, killing and jailing of critics but also character assassination of the most foul kind.
The anti-terrorism laws
The entire saga of Tissainayagam's detention, (for some months without being formally charged) occurred in a particular context, the validity of which would no doubt be argued in the higher appellate courts. This deserves detailed scrutiny in a critical analysis of the High Court judgment itself. The question of his alleged confession is yet another facet of this problem. Tissainayagam's purported confession was relied on by prosecutors to allege that he had obtained monies from sources linked to the LTTE. The defence contended that this charge was based on a coerced confession from Tissainayagam which had anyway been tampered with and was inherently contradictory on manifold points.
For years, successive governments have been called upon in vain to ensure that these confessions, in many cases, obtained through physical or mental duress, are not admitted. The safeguard that a court may rule upon their admissibility is obviated by the fact that the burden is on the accused to prove that the confession was made under duress. Bringing about a balance in the law in this respect now seems more far distant than at any other point in the past.
Courage under fire
One picture that I saw of JS Tissainayagam this week showed him managing a smile at the camera. This is the indelible picture of a journalist, ethnic Tamil as he is, being sentenced for expressing his opinions in this paradise isle where (apparently) we have now seen the dawn of a new age with no minorities or majorities.
This is a telling picture indeed for those in the media who strive with all their might and main, most unsuccessfully, I may add, to prevent honest criticism of the most profound injustice. It is to be hoped that in time, they will get their due deserts if their own invective has not already crucified them.
But make no mistake about this, those responsible for what has happened to Tissainayagam today include not only the operators of a deeply subverted system which detained and indicted him under draconian anti terrorism laws. Rather the responsibility must also be borne by those journalistic hacks masquerading as his 'colleagues' and his 'friends' who give covert impetus to the totalitarianism of those in government, weep as they may crocodile tears at what has befallen him.
One major part of this totalitarian drive, (and I use this term quite deliberately), is to subvert and corrupt the law, be it by detaining and indicting journalists under subversive anti terrorism laws in one instance or by papering over patterns of extra judicial executions and enforced disappearances through corrupted Commissions of Inquiry in another instance. Critics who expose these cover-ups are then subjected to scurrilous abuse of the worst kind.
In a very fundamental sense therefore, some within the media community are very much to blame for the terror that now plagues the media to the extent that to practice true journalism today would invite the worst retribution of its kind. Tissainayagam is among many who are paying the price. As to how many more would be added to this list in the future remains to be seen.