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Tissainayagam case & Karava civil war

The judgement in the J. S.Tissainayagam case was the talk of the town last week, firstly because Tissainayagam is Tamil, and secondly because he was a journalist and the case had to do with something that he wrote, among other matters. So both minority rights and the freedom of expression were at issue here. I have met Tissanayagam on a couple of occasions many years ago. He certainly did not come across to me as a cloak and dagger type. The case against Tissanayagam revolved mainly around some statements in an editorial in the North Eastern Monthly, a magazine edited by him. Coupled to this was the issue of funding from the LTTE. The contentious statements were as follows:

"Providing security to Tamils now, will define north eastern politics of the future".

"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 perpetrator of the killings".

"Such offensives against the civilians are accompanied by attempts to starve the population by refusing them food as well as medicine and fuel with the hope of driving out the people out of Vakarai and depopulating it. As this story is being written, Vakarai is being subject to intense shelling and aerial bombardment".

The court interpreted these as incendiary statements meant to generate hatred between ethnic communities. Even though defense witnesses like Vasudeva Nanayakkara, Manouri Muttettuwegama and Ven Baddegama Samitha had argued that these statements do not constitute an incitement to hatred, the court decided based on case law (Morgan vs Oldhams, 1971, and Hough vs London Express Newspapers Ltd, 1940) that if the ‘ordinary man’ is taken as a guide, then some ‘lose thinking’ has to be accepted as the ordinary man does not formulate reasons in his own mind. In the latter case mentioned above, it had been decided that one cannot call witnesses to say what they understood by the words published, and that what needs to be established was what the words meant in the ‘ordinary sense’ and that they were in fact, published.

The judgment also quotes an Indian case Satyaranjan Bakshi vs King (1929). The accused in this case had said that 200 persons had died in a train accident whereas the number of dead had actually been 50. The judge said in this case that "If the words used naturally, clearly and indubitably, have the tendency to incite one community against another, then the intention to do it should be inferred".

A Tamil Dreyfus?

There were problems in the defence of Tissainayagam. What was most embarrassing was that one of the witnesses called by the defence, the deputy chairman of the Human Rights Council, actually ended up testifying against the defendant! The witness stated that he had been visiting the Vakarai area and meeting the divisional secretary for the area and that the World Food Programme had been distributing food through this divisional secretary and that there were government hospitals and governments doctors even though it was an LTTE controlled area in 2006. This witness had also said that he had met LTTE commanders of the areas as well. So the defence deftly proved that the defendant had been factually incorrect in his reporting, thus making the imputation of an intent to incite hatred that much easier! When shown what Tissanayagam had written about Vakarai, this defense witness had agreed that the statements were indeed incendiary.

And that was not the only defense debacle. In any criminal case, the first thing that any defense lawyer would do is to have any confession signed by the defendant while in custody declared inadmissible as evidence. Sri Lankan law does not allow non-voluntary confessions to be admitted as evidence. When the court decided after an examination that the confession signed by Tissainayagam had been voluntary, the defense lawyer had failed to appeal against this decision at that stage. The judgment in fact specifically states that the defence had the opportunity to appeal against the decision to admit the confession as evidence, but that they did not avail themselves of the opportunity.

No Sri Lankan court will lightly arrive at the conclusion that a confession has been voluntary, because judges tend to be wary about confessions. Any defence lawyer, usually, will leave no stone unturned to appeal against any declaration that a confession made by his client was voluntary. However in this case the defense lawyer did not contest that declaration. Later, however when what was said in the confession began to tally with other evidence presented by the prosecution such as records of telephone calls and details of bank deposits and withdrawals, the defence had raised objections to using the confession as evidence. The court had not been inclined to entertain these objections at that stage.

In fact throughout the case, the Judge makes specific mention of the defence not contesting this or that point. What takes the cake is that when the sentence was pronounced, Tissainayagam had been given ten years for one count and five each for the other two, making it twenty in all. The defense lawyer had not requested that these sentences run concurrently, so Tissainayagam had ended up with 20 years! This raises the question as to what is going on? The court follows a certain procedure and at every turn it appears that the defense has not been doing what a defence would normally be expected to do.

One begins to wonder whether Tissanayagam is an unwilling ‘Thileepan’. Remember the LTTE leader who fasted to death in 1987 to rally the Tamils around the LTTE in the wake of the Indo-Lanka Peace Accord? The Tamil Diaspora needs another Thileepan to draw international attention to their cause. The Americans and the Canadians have already issued statements about the judgment, and Tissanayagam has already been given an international journalism award, but none of these people could possibly have read the judgment because it was delivered in Sinhala! There’s no doubt that this case could have been fought differently.

Some people may draw parallels between Tissanayagam’s case and the Dreyfus affair in France. In 1894, Alfred Dreyfus, a Jewish a captain in the French Army was convicted of spying for the Germans. This conviction was the spark that gave birth to the Zionist movement which culminated in the creation of Israel. It was Theodore Herzl a Jewish journalist who covered the Dreyfus trial who came up with the theory that assimilation was no protection against anti-Semitism, and that Jews will always remain strangers in their countries of residence unless they have a country of their own.

One disservice done by the defence to Tissainayagam was to compare what he had said in the North Eastern Monthly to the statements made by Anagarika Dharmapala early in the last century. Dharmapala lived in a different era, and he said many things publicly about the British, the various communities living in this country and about the Sinhalese themselves which would certainly not be ‘politically correct’ today and would even be considered incendiary. The 30 year war in this small country has shaken the world, and nobody from any community is going to shoot his mouth off the way Dharmapala did about a century ago. At that time Sri Lanka was not even a nation, but a British colony and Dharmapala was pushing parochial communal interests, not national interests.

Besides, Dharmapala lived most of his adult life in India, and he would have felt free to say anything he wanted about anybody in this country. What Dharmapala said a century ago would not have been incendiary then but would be so today. To compare what Tissainayagam said to that of Dharmapala was a sure fire way of convincing the court that what Tissainayagam was aiming at with his statements was exactly what the prosecution said he was trying to do! Quoting the case law mentioned above, the judge made the point that before publishing something the publisher had to take into account how an ordinary person would react to what was published.

Our repeated attempts to contact the defense lawyer on Saturday, to get these points clarified, failed.

Ambalangoda flashpoint

As was reported in this column some weeks ago, the acrimonious departure of Matara district UNP stalwart Justin Galappaththy from that party took place in the context of a Karava-Govigama contest largely because of an ill-conceived poster put up by the new UNP district leader of Matara, Sagala Ratnayake. What we said was that this acrimonious depature of a Karava stalwart from the Matara district may have a knock-on effect on the Galle district as well. Galle has a much larger Karava population than the Matara district and may result in the UNP losing its base among a significant section of the voters and among a wealthy, well-educated community wielding power disproportionate to their numbers. Well, UNP leader Ranil Wickremesinghe has tried to take some remedial measures with a view to minimizing the damage in the Galle district.

Last week, Wickremesinghe appointed Maitri Gunaratne, a young lawyer, as the new organizer for Ambalangoda, a predominantly Karava electorate in the Galle district. The interesting thing is that both the incumbent chief minister of the southern province, Shan Wijelal de Silva, and the main challenger for the chief ministership, Sajin Vaas Gunawardena are also Karava and from Ambalangoda. Hence the epicenter of the battle in the SPC election is going to be in Ambalangoda. By making Maitri Gunaratne the UNP organizer for Ambalangoda, the UNP is not going to win. But at least they may be able to put up a fight where a fight would otherwise not have existed. Gunaratne is a survivor who has managed to live through the most demanding challenges. As party leader, Wickremesinghe, has turned Gunaratne into a battle hardened political commando trained to survive in the most inhospitable terrain.

Gunaratne was first appointed as the UNP organizer for the Habaraduwa electorate in 1994 during the last days of the UNP regime. He served as the Habaraduwa organizer until 1998 when he was removed by Wickremesinghe. In 1999 he contested the SPC elections and was elected a provincial councilor. For him to get elected once he had been removed from the electoral organizer’s position was a miracle because his removal would normally be interpreted by the hierarchy-minded UNP voter as a fall from grace. In 2004, he contested the SPC elections and won a second term, once again without an electorate. The closest he has got to being appointed an electoral organizer since 1998 is running the Municipal election campaign in Ambalangoda town in 2001 and the presidential campaign in Baddegama in 2005. So Gunaratne is a survivor who has with the Karava resilience that Dr Michael Roberts spoke of, refused to drown despite repeated attempts to do him down.

Now after more than a decade, Wickremesinghe has brought Guneratne out of cold storage and made him an electoral organizer once more to directly confront the two most powerful contenders on the UPFA side. Not stopping at making him organizer for Ambalangoda, Wickremesinghe even invited him to make a presentation to the UNP’s management committee last week on a strategy to stem the erosion of support for the party. Gunaratne called his new scheme to rescue the UNP, the GS-100 scheme. The reason why the UNP is losing election after election according to Gunaratne is because UNP families are not going to vote. He had analyzed the results of the Bandarawela electorate at the recently concluded Uva PC election and come to the conclusion that only 43 UNP families per Grama Sevaka division have gone to vote. The GS-100 scheme consists of increasing through persuasion the number of UNP families going to vote to 100. By this, Gunaratne expects to be able to retain the UNP vote base at 40%.

What impact Gunaratne’s belated appointment as an electoral organizer will have on the Galle district is yet to be seen. But he’s the best that Wickremesinghe has to throw into the fray in the south. Gunaratne comes from the Karava elite, being a great great grandson of the philanthropist Mudliyar C.F.S.Jayawickrema of Tissamaharama and is one of the few representatives of the well known Jayawickrema/Amarasuriya clan still in public life. Gunaratne is a well to do lawyer and the son of that irrepressible Karava buccaneer, Malinga Herman Gunaratne, planter turned author turned tea factory owner.

EU’s interim report

Last week, we saw the secretary of the export development ministry announcing that the Sri Lankan government had received the interim report of the EU investigation against Sri Lanka. This is a 170 page preliminary report sent here to obtain the Sri Lankan government’s reaction to the views of the investigating team. Those appointed to the investigating team were Professors of Human Rights and Humanitarian Law, and it is inevitable that the preliminary report will be entirely on human rights. After the secretary to the export development ministry revealed that the government had received this report, the cabinet spokesman minister Anura Priyadarshana Yapa refused to even acknowledge that the government had received such a report. As we pointed out in this column last week, the European Commission is in violation of World Trade Organisation rulings simply by instituting this investigation against Sri Lanka in the first place and responding to it may convey the impression that the government has acquiesced in this violation of international trade law.

By sending this interim report to Sri Lanka, the European Commission has once again demonstrated that they have learnt nothing from UN Special Rapporteur Philip Alston’s 27 March 2006 report on extra-judicial killings. Alston’s report was the most comprehensive of the three UN documents specifically mentioned in the European Commission Decision of the 14th October 2008, which instituted this ongoing and very contentious investigation against Sri Lanka. As I said last week, Alston has been as balanced and fair in his assessment as one can expect, and there are warnings in his report addressed to the international community about the way they handled the LTTE. Last week I wrote about his recommendation to the international community that the governments of the countries in which Tamil expatriates were living in their numbers should engage this Diaspora in a dialogue with a view to weaning them away from financing the LTTE’s killing and mayhem in Sri Lanka. That is not all that special rapporteur Alston told the international community.

Another thing that he observed was that the international community should also call upon the LTTE to respect human rights. Alston states that the international community does have human rights expectations of the LTTE, but that they have ‘long been reluctant’ to press these demands on the Tigers doing so may amount to treating the LTTE as a state. In fact, Alston who is a lawyer, launches into a human rights lecture to the international community. He argues that it is both appropriate and feasible for the international community to call upon an armed group to respect human rights norms if this armed group controls a significant territory and population. He says that by the international community calling upon the LTTE to respect human rights, they will not be giving it legitimacy. As an example he points out that the UN security council has long been calling upon non-state actors to respect human rights.

Philip Alston’s report on extra judicial killings in Sri Lanka is a rare admission coming from the West - that the international community has not been balanced when it comes to the parties to the conflict in Sri Lanka. Alston says that the international community did not want to press human rights demands on the LTTE for fear that it would gain legitimacy thereby. However, any Sri Lankan government of the past two decades, whether UNP or UPFA, would have fallen over themselves in telling the international community "Don’t worry about the legitimacy issue. Just put the same pressure that you put on us on them as well!" Nobody is going to buy the idea that the West was even more worried about giving the LTTE legitimacy than the Sri Lankan government. Why Alston would have come up with such a theory is open to conjecture.

It may be the case that Alston asked the international players in the Sri Lankan conflict like Norway why they were not pressing the LTTE to respect human rights and they may have trotted out the excuse that it would give terrorists legitimacy. But by the same token, the international community should also have opposed the terms of the ceasefire agreement of 2002 which gave the LTTE control over a large tract of territory and population. But the international community backed it to the hilt. Alston could not have been unaware of this. Why he chose to believe that ‘reluctance to give them legitimacy’ argument may have been because he as a westerner was too embarrassed for words at the naked bias he saw in the approach of the international community to Sri Lanka’s problem. He may have been ready to believe anything that would portray the West in a better light. It is a telling indictment on the international community as a whole that five years after 9/11, a UN Special Rapporteur had to call on them to get the Tamils living in their countries to stop financing terrorism in Sri Lanka and to ask the LTTE to respect human rights.

What Alston said

This, mind you, was a quarter of a century after the civil war in Sri Lanka started in earnest and all that while western soil was used to wage war on Sri Lanka and the governments of those countries did nothing. Even after Philip Alston’s lecture to the international community of the 27th March 2006, the west did not change much. In May 2006, the EU declared the LTTE a terrorist organization. But from that time onwards, the EU was engaged in an attempt to save the LTTE from the government forces in a war that Philip Alston predicted in his report as being inevitable because of the provocations of the LTTE. He was in Sri Lanka from the 28th November to 6 December 2005, and he states in his report that "The last days of my visit witnessed what were then the deadliest attacks on government forces since the ceasefire and even more deadly attacks have followed". In a foot note to his report, Alston notes that at the time of writing this report (Presumably March 2006) that in just the three months after he left, at least 78 government security personnel had been killed in LTTE attacks.

There was never a more justifiable war than the one that the Sri Lankan government launched against the LTTE in 2006. It is so rarely that a fair and balanced report emanates from the west about Sri Lanka that Alston’s report makes delectable reading. He even takes the Sri Lanka Monitoring Mission to task for being ineffective and not having the confidence of the public. He also says that there was a conflict of interest in that Norway was the facilitator of the peace process while at the same time heading the SLMM. When monitoring the peace gets mixed up with facilitating the peace, the inevitable result is that violations are overlooked for the sake of saving the ceasefire. There are many more points worth looking at in Philip Alston’s report but all that has been rendered unnecessary because the European Commission’s investigators have put out their interim report. Unless there was complete bias on the part of the investigators, they could not have arrived at a negative conclusion about Sri Lanka.

There was the feeling all along, that because of the bias displayed by the west, in the past, which Special Rapporteur Alston himself has referred to in his report on Sri Lanka, that this investigation was actually an inquisition and that its result was a foregone conclusion. This shifts the discussion from the three UN reports mentioned in the European Commission’s decision of the 14th October 2008, instituting the ‘inquisition’ against Sri Lanka, to the World Trade Oranisation and its rules.

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