Opposition Leader Ranil Wickremesinghe last week told Parliament that the Tissainayagam case has revealed disturbing trends including an attempt to reintroduce criminal defamation through the back door. This is what he said:

Another threat to Media Freedom is the Government’s attempt to reintroduce criminal sanctions against media personnel. They are attempting to use the temporary provisions of the Prevention of Terrorism Act to bring in criminal defamation through the back door. These laws were enacted in 1979 to replace the Proscription of the LTTE Act 1978, since by that time, the government had identified a number of terrorist groups.

This legislation is based on a UK Legislation. The then Minister of Justice, the late Hon. K W Devanayagam when introducing this Bill, stated;

"Part I of the Bill deals with offences which are not new to the laws of this country. They are offences that already exist in the law. But under the special circumstances in which we are dealing with terrorists and the attendant consequences, this comes within the ambit of the special law where the punishment is enhanced."

Then, these provisions apply only to terrorists. This is also clear from the preamble where it states that this law is against elements, groups of persons or associations that

i. advocate to the use of force

ii. advocate the commission of a crime

iii. resort to acts of murder

iv. resort to murder of Members of Parliament, Local Authorities, Police Officers and witnesses

v. commit acts such as armed robbery, damage to State property and other acts involving actual coercion, intimidation or violence.

as a means of , or in and accomplishing governmental change within Sri Lanka.

Furthermore, this legislation does not take away the freedom of speech and expression including publication contained in Article 14.1(a) of the Constitution - the right to speak and express your views and to publish them without censorship.

The preamble itself says:

"Whereas the Parliament of the Democratic Socialist Republic of Sri Lanka continues to affirm that men and institutions remain free only when freedom is founded upon respect for the Rule of Law and that grievances should be redressed by constitutional methods."

This law then imposes certain restrictions on this right when it is used to further activities of above mentioned groups by a person who belongs to organisations.

In this case, the government has not respected the Rule of Law. It did not produce any evidence to establish that Tissainayagam was a member of the LTTE. If they had evidence they should have produced it in courts. He has been prosecuted as the Editor of a website, that is, as a media person. This certainly was not the intention when we passed the PTA. It was to be confined to terrorist groups.

The government should seek redress only by constitutional methods and not by subverting the constitution. As a result, all journalists face a new danger, if the government think they can prosecute them for communal disharmony irrespective of being a member of a terrorist group.

Secondly, the Government relied on the case Hough vs. London Express . This case has no relevance. It pertains to civil defamation. Presumptions in a civil case does not apply to criminal cases. The standard required to prove a civil case is a balance of probabilities. Therefore it is easy to rebut any legal presumption arising in a civil case. In a criminal case, the required standard is beyond reasonable doubt. Therefore, greater degree of conviction is required in the criminal cases. Therefore, the government introduced Hough vs. London Express case in an attempt to equate this offence to criminal defamation.