In this light I think it is good for us to examine the facts of the case.

First, let us look at the charges read out to Tissainayagam on August 25, 2008 in the High Court. In summary they were;

1) Under the PTA Section 2(2)(ii) Article read with 2(1)(h), conspiring with unknown persons to incite violence and communal disharmony and bringing the government into disrepute through the publication of the North Eastern Monthly during the period of 1st June 2006 and 1st June 2007.

2) During the same period  - writing with the intention of causing ethnic violence and bringing the government into disrepute.

3) Under the Emergency Regulations of December 2006 - collecting funds from Non Governmental Organisations for specified terrorist activities, i.e. to print and publish the North Eastern Monthly.

The elderly mother of journalist J. S.Tissainayagam in deep contemplation as she clutches on to the Peter Mackler Award  for Courageous and Ethical Journalism which was won by her son early this month
Photo by Thusitha Kumara

On September 9, 2008 these charges were amended by deleting the words “bringing the government into disrepute” – there being no such offence. The words ‘Non Governmental Organisations’ were also deleted. Therefore basically Tissainayagam was charged with conspiring with unknown persons to incite ethnic violence by writing, and collecting funds to print and publish a magazine. It is on this basis that the court was asked to find Tissainayagam guilty or not guilty.

Given the above charges, the act of terrorism was writing articles that incited ethnic disharmony and the act furthering terrorism was of printing a magazine that carried these inciting articles. Therefore, collecting funds was not the offence. What had to be proved or disproved is that the funds collected were used to print such a magazine that carried inciting articles. The source of the funds was not a relevant question and was in fact not proved.

Given the above, even if it was proved that Tissainayagam received funds from the President’s Fund for the publication of this magazine he would be guilty of the third charge. Tissainayagam never attempted to deny that he collected funds to publish this magazine. He stated that funds were collected in a designated bank account from the subscribers to the magazine (as is the common practice with many magazines, I might add).

In this context it is extremely puzzling as to why Aryasinha asked the EU to look at the “more serious charge” of Tissainayagam collecting money from the LTTE, because there is no such charge. The LTTE is not mentioned in the indictment at all. And a person cannot be found guilty of something he has not been charged with. Furthermore the prosecution did not provide the court with any material evidence to link the funds flowing into the designated bank account with the LTTE or any other terrorist organisation.

In the event that the Attorney General’s office thought that Tissainayagam was indeed guilty of collecting money from the LTTE they would no doubt have charged him under the Financial Transactions Reporting Act No. 6 of 2006 which was passed for the explicit reason of combating the financing of terrorism.

Therefore Aryasinha would do well to heed the words of President Mahinda Rajapakse — to read the case before commenting on it.

Premila Canagaratna is an Attorney at Law and a member of the Bar Association of Sri Lanka. She was present in court several times during the Tissainayagam hearings including when the decision was made in High Court.

http://www.thesundayleader.lk/20091011/insight.htm