“…it is plain that Voltaire’s dictum on the freedom of expression is a value that is nowadays wholly subordinate to the paranoid nostrums of the ‘National Security State.’”
Asanga Welikala, A State of Permanent Crisis: Constitutional Government, Fundamental Rights, and States of Emergency in Sri Lanka, 2008
J.S. Tissainayagam, a working journalist and Editor of the http://www.outreachsl.com website and North-Eastern Monthly, was detained under the draconian Prevention of Terrorism Act No 48 of 1979 (PTA) on 7th March 2008 and held for over 180 days without any formal charge by the Terrorist Investigation Department (TID). The PTA has always been widely regarded as a draconian piece of legislation that has led to the abuse of political power, ethnic discrimination, the suppression of civil liberties and is inconsistent with constitutionally enshrined and international standards of human rights protection. The detention of and charges against J.S. Tissainayagam are significant for the reason that it is first occasion since the PTA was enacted in 1979 that a journalist has been charged under it, in respect of matters arising directly from the practice of his profession.
Enacted first as a temporary law 1979, PTA became permanent in 1982 with the escalation of the violent conflict in the country and the terrorism of the Liberation of Tamil Tigers Eelam (LTTE). The PTA deals mainly with providing wide powers of search, arrest and detention to the police to deal with suspected terrorism. Deeply undermining the freedom of expression among other fundamental civil liberties is Part V of the Act that prohibits the publication of any matter relating to;
i. the commission or investigation of an offence under the Act, or
ii. “incitement to violence, or which is likely to cause racial or communal disharmony or feelings of ill-will or hostility between different communities or racial or religious groups”
without the approval of a competent authority (appointed by the relevant Minister). Further, Section 2(1)(h) of the PTA provides “[Any person who] by words either spoken or intended to be read or by signs or by visible representation or otherwise causes or intends to cause commission of acts of violence or religious, racial or communal disharmony or feelings of ill-will or hostility among different communities or racial or religious groups… [shall be guilty of an offence]”.
As the Free Media Movement (FMM), a noted media freedom group in Sri Lanka avers,
“The PTA not only undermines universal principles of procedural justice and confers inordinate powers in the hands of the executive; it also directly undercuts the freedom of expression and the media by allowing content control by the executive on pain of penal sanction. Local and international human rights groups, including CPA and the Free Media Movement (FMM), have consistently argued from the inception that the Emergency Regulations of December 2006 were wholly inconsistent with fundamental rights guarantees under both the Sri Lankan constitution and international law.”
Salient points of Tissainayagam’s case point to a significant and chilling deterioration of media freedom in Sri Lanka under the Rajapakse administration. In fact, this case confirms fears that the Rajapakse administration effectively mirrors the intolerance towards the freedom of expression the LTTE is known and reviled for. On 12th August 2008, Prof. Rajiva Wijesinha, Secretary General of the Government’s anachronistic Peace Secretariat, in his capacity as Secretary, Ministry of Disaster Management and Human Rights published a letter to Brad Adams from Human Rights Watch. Prof. Wijesinha quoted a passage from one of Tissa’s articles – ‘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’. – and goes on to note that this is evidence that Tissainayagam has transgressed Sri Lankan laws and is furthermore cited in the charge sheet against him.
Embarrassing the incumbent Sri Lankan government, or bringing it into disrepute is thus one of the key charges against Tissainayagam. This is not the first time this absurd charge has been used under the PTA to clamp down on independent and investigative journalism critical of the incumbent regime. For example, in a case brought under the Act in 1996, Police detained an Editor of the Satana newspaper because of an article on a military setback by the Army at the hands of the LTTE. In a more high profile case during the same year, the News Director of Teleshan Networks Limited, a private TV broadcaster, was charged over a broadcast that stated that security forces in the East fled after an LTTE had attack. On account of the agitation and uproar by the media and the human rights community, both domestic and international, this particular case was later withdrawn.
Tissainayagam’s case is perverse social engineering. It is aimed at making an example of him to other media personnel and independent voices in the media, including bloggers. The manner of Tissainayagam’s detention and the literally tortuous conditions of his incarceration are outrageous markers of a brutish regime with scant regard for sustained domestic and international condemnations of its clampdown on the freedom of expression. In this respect, we need to grudgingly acknowledge the success of the regime in instilling a palpable fear psychosis and deep anxiety that is pervasive – and justifiably so – amongst the independent media community in Sri Lanka. This leads to unprecedented levels of self-censorship across all media channels (print / electronic / web), which in turn leads to a media that is unable to fulfil its role in a democracy as public watchdog. As Dr. Lucksiri Fernando notes in Freedom of expression and National Security under Siege: J. S. Tissainayagam’s Detention,
“Nothing seems to justify the detention and indictment of Tissainayagam… The entrenchment of PTA under the current political, economic and security conditions however, does not give any flexibility to the government to entertain enlightened thinking. It is quite possible that the government will unfairly use Tissainayagam as an exemplary case to demonstrate to the international community that it cannot be pressured and insist that its charges against him are legitimate. They will argue he was granted due process, despite the irregularities in his indictment. By not appearing to bow down to international pressures, the government will boost its domestic credibility at the same time that it sends a strong warning to other journalists who exercise freedom of expression by voicing opinions critical of the government.”
A day before Tissainayagam was detained, the TID detained Vettivel Jasikaran, manager of the news site OutreachSL, and his companion, Vadivel Valamathy, both Tamils. Quoting reports by Amnesty International, the Committee to Protect Journalists (CPJ) notes in its Annual Prison Census that in a court in Colombo on 30th June 2008, when their detention was extended for three months, Jasikaran said he had been tortured and that Valamathy had been repeatedly denied medical treatment following recent stomach surgery that required continued care. These monstrous facts, amongst many others, are a slap in the face of a government that never misses an opportunity to hypocritically portray itself as a champion of human rights, justice and peace to domestic and international constituencies. Using the PTA in conjunction with Emergency Regulations, the Rajapakse regime severely undermines free media and the freedom of expression. More dispiriting is the realization that save for sustained domestic and international agitations, there is little or nothing that can be done with the PTA and Emergency Regulations in play to strengthen and support independent media. All one can hope for is the quick release of Tissainayagam, Jasikaran and Valamathy without any physical harm.
However, their trauma is shared. The scars of repression and terror run deep in Sri Lanka.
Published in Index on Censorship, 2009