Saturday, January 10, 2009

Impunity and Legal Cases -- A fragment from a report on press freedom in Sri Lanka

Impunity continues to be the norm where attacks on journalists in Sri Lanka are concerned. Since the murder of Dharmaratnam Sivaram “Taraki” in April 2005, there have been at least 14 other cases of journalists and media workers reported murdered. The International Mission was unable to identify any one case among these that had been brought to the stage of prosecution. The authorities are also yet to identify, let alone apprehend or bring to trial, the perpetrators of recent abduction attempts and armed attacks on journalists, in particular in the cases of Namal Perera in the heart of Colombo and Radhika Devakumar in Batticaloa.

The International Mission was told that little progress had been made in the investigations into the “disappearances” of two journalists -- S. Ramachandran and V. Nimalarajah -- in the Jaffna peninsula . Hopes are now receding that they will ever be found alive.

No accountability for verbal abuse and physical intimidation
Apart from these specific cases, a signal seems to have been sent from the highest political level that verbal abuse of media workers as well as physical intimidation and attacks are fair tactics. Labour Minister Mervyn Silva, a close political ally of President Mahinda Rajapaksa, has been a singularly conspicuous figure in this respect. Following a December 2007 incident when he stormed into the premises of the state-owned broadcaster, the Sri Lanka Rupavahini Corporation (SLRC), and roughed up the director of news supposedly for his failure to cover an event he had addressed, Silva has had several bruising encounters with the media community. He has in particular targeted personnel of the Maharajah TV group, which broadcasts in three languages and controls the top-rated Sinhala channel, Sirasa. The minister’s ire may have been aroused by the strong stand that Sirasa TV took after the SLRC incident, in demanding some form of accountability from him.

Silva has indicated at three public functions where he has since been present, that Sirasa TV personnel would be unwelcome to cover his public engagements. At the most recent such incident on August 4, 2008, the minister attacked a Sirasa TV crew at the venue of a public function. Sirasa TV has filed a fundamental rights case against the minister, as too has one of the aggrieved staff members. Silva meanwhile led a demonstration outside the offices of the TV station, demanding that its broadcast licence be revoked. At the first hearing of the case against him, on August 21, the minister was granted bail and emerged from the court premises reportedly hurling abuse at the TV channel. He has since persisted in using explicit language associating the channel with the Tamil insurgency movement in the north of the country.

On November 16, the Colombo High Court indicted Silva and some of his political associates for the crimes of illegal assembly, assault and robbery. The International Mission welcomes this judicial intervention and calls on the Sri Lankan leadership to enforce some measure of political accountability till the judicial process is completed.

Terrorism law to persecute journalists
One of the most worrying aspects of the evolving legal environment for the media in the country is the use of terrorism legislation to prosecute journalists.

On March 6, 2008, B. Jasiharan and his wife V. Vallarmathy were arrested from the office of the E-Kwality printing press which also housed the offices of the website. The following day, J.S. Tissainayagam, the editor of the website, went to the premises of the Terrorism Investigation Division (TID) of the Sri Lankan police, to inquire into the detention of the two. Tissainayagam himself was taken into custody along with a colleague, K. Wijayasinghe, who had accompanied him to the TID offices. Ranga and Udayan, a cameraman and videographer for the website, were arrested the same day.

The arrests were confirmed unofficially late that night, after repeated inquiries from Tissainayagam’s family, with the summary explanation that all the detainees were LTTE cadre against whom credible cases of terrorism could be made out. Early the next morning, Tissainayagam’s home was raided by TID officials, who searched it thoroughly without a warrant, and seized a NorthEastern Monthly Magazine that Tissainayagam used to edit. This Magazine ceased to be printed after June 2007.

At 10 p.m., Tissainayagam’s wife Ronnate, was allowed briefly to visit and talk to him, though under the watchful eyes of two TID officials, who have been present at all subsequent visits. Family members of all three detainees who have sought to visit and arrange legal assistance, have often been threatened. On March 11 and 12, Jasiharan’s sister was reportedly jostled and manhandled as she left home. On the second occasion she was pushed into a white van – a symbol of abductions and lawlessness in Sri Lanka – and held captive briefly, during which time she was warned that her whole family could be picked up by the TID.

Wijayasinghe, Ranga and Udayan were released without charge on March 19, the day that Tissainayagam filed a Fundamental Rights Case in the Supreme Court.

The prosecution has continually run foul of the law in its handling of the case and yet managed to avoid any form of stricture. The detention order for Tissainayagam was issued only on March 27, the day the Supreme Court, hearing a fundamental rights application filed on his behalf, asked for it. A lawyer representing Jasiharan petitioned the court on May 27, claiming that his client had been tortured and demanding a medical examination.

Emergency Regulations in force in Sri Lanka allow the detention of anybody for up to 90 days without judicial authorisation. But following that the detainee has necessarily to be produced before a judicial officer for further extension of custody. In the case of Tissainayagam, Vallarmathy and Jasiharan, the TID ignored repeated petitions that they be produced in court, citing certain “administrative difficulties”.

On June 30, when the accused were produced in court after over 110 days in detention, the magistrate ruled, without assigning any clear reason, that they should be kept in the custody of the TID while investigations continued. An urgent request for medical attention in the case of Tissainayagam, who was suffering from a serious eye condition, was admitted. But an appeal for bail for all three accused was rejected.

An indictment against all three defendants was filed before the High Court of Colombo on August 13. Charges were formally laid under Sri Lanka’s Prevention of Terrorism Act (PTA) – a draconian law that has remained on the statute books despite being introduced in 1979 as an ostensibly temporary measure – on August 25. The charges against Tissainayagam were: bringing discredit to the government, inciting racial and ethnic animosities, through material published in the North East Herald, and raising funds through non-governmental sources in pursuit of terrorist objectives. The charges against Jasiharan was aiding and abetting Tissainayagam and Vallarmathy was charged with the offence of aiding and abetting her husband Jasiharan to further terrorism.

On September 9, the charge of “bringing discredit to the government” was deleted and Tissainayagam and Jasiharan were charged, for the ostensibly criminal offences of editing and printing the magazine.

The evidence produced by the prosecution included two articles published in the Northeastern Monthly. The first of these which was run as an editorial without a byline in the July 2006 issue stated that “the inability to protect its citizens within the areas it controls has caused Sri Lanka international embarrassment”. It posed the question of what the future would be of Tamils in government-controlled areas of the northeast of Sri Lanka. “It is fairly obvious”, the editorial argued, “that the government is not going to offer them any protection (since in fact) it is the state security forces that are the main perpetrator of the killings”.

The second article, published under Tissainayagam’s initials in November 2006, drew attention to the deteriorating humanitarian situation in the eastern provincial town of Vaharai, which had allegedly been subjected to a sustained campaign of artillery and aerial bombardment as Sri Lankan forces sought to recapture it from Tamil Tiger rebels. Tissainayagam commented that the government was not doing this “without design”. “By trapping the Tamil population in Vaharai”, he argued, the government hoped to create a “human shield” that would prevent any Tamil Tiger offensives further south. “At the same time, starving and bombing Tamil civilians in Vaharai (would) create disaffection between them and the LTTE leading to friction and ill-will. Such internal quarrels (would) act as insulator for the government in the highly vulnerable East”.

Apart from these two articles, the prosecution placed as evidence before the court, the alleged confessions made by Tissainayagam and Jasiharan while under police custody and the personal affidavits of 15 officials of the TID. Two judicial medical officers (JMOs), who had examined Jasiharan for evidence of torture, were listed as witnesses in his case.

Informed observers believe that there is a deep political vendetta behind Tissainayagam’s arrest and prosecution, arising from critical commentary he published in February 2008 on the shoddy processes of information gathering adopted by an officially constituted body called the Committee to Inquire into Allegations of Abductions and Recruitments of Children for Use in Armed Conflict. Comprising Sri Lanka’s Minister for Human Rights and the Secretary in its Ministry of Justice, the report of the Committee was presented at a meeting of the U.N. Human Rights Council in February, refuting the widespread belief that Tamil militias aligned with the government of Sri Lanka in the north and the east were recruiting child soldiers in large numbers.

Tissainayagam’s commentary recorded that the report was based on a visit to Batticaloa lasting four hours by the Secretary in the Justice Ministry and that its basis in reality was quite weak. The article reportedly caused a certain degree of embarrassment to Sri Lanka’s Human Rights Minister, who was then visiting Geneva to present his report before the U.N. Human Rights Council.

In dealing with the charges laid against Tissainayagam and his co-defendants, the defence initially sought to dismiss the charges on the grounds that they pertained to a period of time when the PTA was not operative. It was agreed following the ceasefire agreement between the government and the Tamil Tigers in February 2002, that PTA would no longer be operative. Since the ceasefire was formally abrogated only in January 2008, the charges against Tissainayagam and his co-defendants amounted to a retroactive application of the PTA to a period when it was not operative.

By late-October, the prosecution finished its presentation of arguments. At this writing, the court was hearing evidence led by the defence on whether the evidence against Tissainayagam was admissible under law. With all said and done, there is little doubt that the prosecution of Tissainayagam, Jasiharan and Vallarmathy stands as a direct threat to media freedom.

Minister aggrieved by investigative report, lays charges of extortion
Arthur Wamanan, a reporter at The Sunday Leader, was detained by Criminal Investigation Department (CID) of the Colombo police in October 2007, on charges of extortion levelled by Mano Wijeratne, Sri Lanka’s Minister for Enterprise Development.

The Sunday Leader had on October 21, 2007, carried an article by Wamanan which reported that Wijeratne’s wife had while on an overseas tour, incurred roaming charges on her telephone amounting to roughly Sri Lankan Rupees (SLR) 87,000, which his ministry had borne, despite it being an inadmissible perk under government rules. On October 19, well before sending his story to press, Wamanan had called Wijeratne from a phone registered in his mother’s name, to obtain his account of the story.

On the day the story was published, the minister filed a case of extortion against Wamanan, accusing him of having demanded a sum of SLR 5 million as the price of not publishing the story. He cited the call records on his cell-phone as evidence. On October 23, minister Wijeratne attacked Wamanan by name in the Sri Lankan parliament. The CID arrested Wamanan the following day, briefly detaining his mother too.

At the first bail hearing, the city magistrate observed: “Media are there to report on what is happening in society. Just because some people are embarrassed by a news report, the media must not be subjected to restriction”.

The prosecution then argued that Wamanan, a 21-year old Tamil youth just beginning his career in journalism, did not deserve bail on account of his ethnicity.

Wamanan was granted bail, but the case against him continues. The CID has reportedly referred the phone used by the accused to its computer analysis section and at the most recent hearing on November 7, 2008, pleaded for more time to furnish details before the court.

Interrogation of journalists and the implicit threat of legal action
The mission has also learnt that top officials of Sirasa TV channel have repeatedly been called in for questioning by the CID of the Sri Lanka police in recent months. Typically, these sessions follow some incident of terrorist strikes and the mode of coverage that the channel adopts. All channels are obliged to observe a government diktat that the body parts of victims are not to be shown in coverage of terrorist incidents. Sirasa TV has reportedly been observing this diktat scrupulously, though channels that are favourably inclined to the government, including the state-owned broadcaster, often get away with lurid coverage accompanied by highly emotionally charged commentary.

Yet according to Sirasa TV, only their top personnel have been often questioned on the material used in coverage of terrorist incidents.

In June 2008, the office of the web-based news portal, was visited by officials of the CID who interrogated the editor and news-editor for close to three hours on certain news stories they had covered, and asked particularly, that they name sources. This news portal was one among eight media organisations that were on May 31, identified by an “editorial” posted on the website of the Ministry of Defence, as “anti-national” and “treacherous”. Just over two weeks later, the Ministry posted another editorial proposing that all news stories having a bearing on national security would need pre-publication clearance from a specially empowered body.

Though these guidelines have not been formally notified, they create a climate of intimidation that permits officials of the security and intelligence agencies to walk into media offices when they please, or to summon journalists for interrogation on any whim.

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