January 22, 2009

Hon. Mahinda Rajapakse
President of Sri Lanka
‘Temple Trees’
Colombo 3
Sri Lanka

Dear President Rajapakse,
Human Rights Watch is writing this open letter to urge your government to drop all charges and unconditionally release journalist J.S. Tissainayagam and publisher V. Jasiharan and his wife V. Valamathy, who have been in detention since March 2008.

J.S. Tissainayagam, an ethnic Tamil columnist with the Sunday Times newspaper and editor of the Outreach website, was arrested by the police Terrorist Investigation Division (TID) on March 7, 2008. The previous day the TID had arrested V. Jasiharan, the owner of E-Kwality press, and his wife V. Valamathy. Tissainayagam and Jasiharan are co-directors of the company Outreach Multimedia. On August 25, Tissainayagam was charged under the Emergency Regulations and the Prevention of Terrorism Act for editing, printing and publishing the North Eastern Monthly magazine, of which he was previously an editor, and for aiding and abetting terrorist organisations through raising money for the magazine.

The indictment quotes the following passages from the North Eastern Monthly as grounds for charging Tissainayagam:

1. In a July 2006 editorial, under the headline, "Providing security to Tamils now will define northeastern politics of the future," Tissainayagam wrote: "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."

2. The charges against Tissainayagam also include part of a November 2006 article on the military offensive in Vaharai, in the east, which said, "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 depopulating it. As this story is being written, Vaharai is being subject to intense shelling and aerial bombardment."

Your government’s decision to arrest and prosecute Tissainayagam violates his fundamental right to freedom of expression under international law. While international law permits some restrictions on freedom of expression for reasons of national security, such restrictions may not be used to justify far-reaching restrictions on critics of the government. The Johannesburg Principles on National Security, Freedom of Expression and Access to Information (U.N. Doc. E/CN.4/1996/39 (1996)), provide in principle 7 that “the peaceful exercise of the right to freedom of expression shall not be considered a threat to national security or subjected to any restrictions or penalties.” Expression which shall not constitute a threat to national security includes: criticism of the government, its agencies, and public officials; objections to a particular conflict; or expression communicating information about alleged violations of international human rights or international humanitarian law.

As a former human rights activist, you brought international attention on the issue of enforced disappearances and would have vociferously opposed anyone being prosecuted for peaceful comments and criticism of the government.

We fear the real motive behind jailing and prosecuting Tissainayagam is to punish him for his activities as a journalist, and to intimidate other critical media in Sri Lanka.

The handling of the case has also violated Tissainayagam’s fundamental rights to due process and a fair trial under international law. We discuss those issues below.

Perhaps the most glaring of these irregularities was that Tissainayagam’s indictment was made available to the Secretary to the Ministry of Disaster Management and Human Rights, Rajiva Wijesinha, before being registered in the relevant court and the indictment proceedings. In a letter dated August 12, 2008, Wijesinha wrote to Human Rights Watch that “Mr Tissainayagam was arrested because of suspicions regarding connections to the LTTE, a terrorist organization which as you are aware is banned in several countries.” He wrote that Tissainayagam continued to have contacts with the LTTE and that after time-consuming investigations (during which Tissainayagam was detained for over 150 days), he had been charged for publications which Wijesinha termed “questionable.” Wijesinha quoted a passage from one of Tissainayagam’s articles written in 2006, which he said was part of the indictment.

The critical issue here is that on August 12 Wijesinha referred to an indictment which was only registered with the High Court of Colombo on August 13. Both Tissainayagam and his lawyer were unaware of the charges against them until Wijesinha’s statement was made public.

We would like to know why Wijesinha had access to the indictment before it was filed. He has no role in criminal investigations or prosecutions. This violates Tissainayagam’s right to due process and demonstrates that the political authorities intervened inappropriately in his case.

We would also like to know why neither the accused nor his lawyer saw the indictment until August 25. This is also a serious failure of due process.

There have been other instances where established legal procedures and due process have not been followed in the case.

    1. The authorities did not inform Tissainayagam’s family of his arrest. Tissainayagam was arrested on March 7, yet his family only had confirmation of his arrest when the TID arrived with him to search his house in the early hours of March 8. This is in violation of Sri Lankan Supreme Court directives on arrests, which require that the family has to be informed immediately. In a country where enforced disappearances remain a major problem, the failure to notify a family of an individual’s arrest can result in significant distress.

    2. The state counsel did not produce a detention order for Tissainayagam on March 27, 2008 in the Supreme Court despite being given a week’s notice by the Supreme Court to do so.

    3. Since his arrest, Tissainayagam has not had adequate access to counsel. Despite seeking permission to see Tissainayagam on March 10, his lawyer did not receive permission to see him until March 21, four days after a Fundamental Rights Case was filed. International law obligates states to permit persons to have access to legal counsel of their choosing immediately upon detention.

    4. Police officers have been present during Tissainayagam’s discussions with his lawyers, violating his right to communicate and consult with a lawyer in full confidentiality. One of the police officers present during the consultations has been cited as a respondent in the Fundamental Rights Case filed. Tissainayagam’s lawyers filed a complaint with the Supreme Court on May 22, yet this practice continued.

    5. Tissainayagam was arrested on March 7, 2008. He was produced in the magistrate’s chambers on April 1 and the magistrate ordered that he be produced again on May 12. Despite repeated orders that Tissainayagam be produced before the magistrate's court, the TID refused to produce him on six different dates, only producing him on May 27.

    6. On June 5 Tissainayagam’s detention order lapsed. The TID failed to follow Sri Lankan procedural guidelines by either submitting a detention order the following day or producing Tissainayagam in court. The TID flouted the magistrate’s order to produce Tissainayagam in court the same day, producing a fresh detention order from the Defense Secretary instead.

    7. On December 23, the Sri Lankan Ministry of Defense published a statement on the case on its website “Background: Thissanayagam Case and Others,” which quoted parts of Tissainayagam’s confession interspersed with comments about the North Eastern Monthly magazine. The case is currently sub judice and the defense ministry article calls Tissainayagam a “terrorist” even as the court is still hearing the matter. The LTTE is not mentioned in Tissainayagam’s indictment but the defense ministry article claims as fact that the North Eastern Monthly magazine was controlled by the LTTE. This has serious implications for the fundamental fair trial right to be presumed innocent until proved guilty.

On August 25, 2008, the trial against Tissainayagam began in Colombo. The government sought to admit as evidence a purported confession made by Tissainayagam while in government custody. On December 5, the High Court ruled Tissainayagam's confession to be voluntary and therefore admissible as evidence. However, the order detailing the reasons why Tissainayagam's confession was voluntary was not made available to his lawyers despite a motion from the lawyers being tendered immediately. On December 18, the High Court judge stated that the case record is kept under "lock and key" but ordered that the order be made available to the lawyers immediately. However, when the trial resumed on January 13, the order had not been made available to them. The lawyers requested the order again in open court, which was finally made available to them on the afternoon of January 19. The prosecution was provided the order before January 13.

The glaring violations of due process and the right to a fair trial in the Tissainayagam case create the wide impression in Sri Lanka and abroad, that his prosecution is part of a campaign of repression targeting independent media.

Press freedom is a fundamental component of any functioning democracy. Fighting terrorism should not become an excuse for jailing peaceful critics of the government. In light of the recent murder of journalist Lasantha Wickremetunga and the attack on Maharaja Television, now is the time for your government to demonstrate its commitment to freedom of expression and the protection of journalists instead of conducting politically motivated prosecutions. Real leadership is needed if you are to convince Sri Lankans and the world that you and your government genuinely support press freedom. An important step would be to drop charges against J.S. Tissainayagam, V. Jasiharan and V. Valamathy.

Thank you for your consideration. We look forward to your response.

Yours truly,

Brad Adams
Director, Asia Division

Cc: HE Mr. H.M.G.S. Palihakkara; HE Mr. Jaliya Wickramasuriya; HE Mr. Dayan Jayatilleke; HE Mr. N.A.C. Nihal de Silva Jayasinghe