by Kishali Pinto Jayawarden
Scrutinizing the Tissainayagam judgment this week indicates two primary points that define current parameters in regard to freedom of expression in general and freedom of the press in particular in Sri Lanka.
First, the government used the standard of the ’ordinary or reasonable man’ to contend that the writings in issue constituted an incitement to communal hatred among communities or racial and religious groups, as prohibited by Section 2 (1) (h) of the Prevention of Terrorism Act, No 48 of 1979 (as amended) read with Sections 113(1) and 102 of the Penal Code. This argument was accepted by court citing cases on defamation decided by the English courts in 1940 and 1971 applicable primarily to the context of individual reputation being affected. The impugned writings in the little known North Eastern Monthly alleged in July 2006 that the government was not offering adequate protection to the Tamils in the North with the state security forces being the main perpetrator of killings and in November 2006, that the population of Vaharai is being depopulated and starved by the government refusing them food as well as medicines and fuel.
The ’ordinary man’ standard
The truth of the second allegation in particular was disproved by the evidence of an officer of the Human Rights Commission, called as a witness for the defence who later turned hostile. The credibility of this allegation is, of course, highly contested. Regardless, the applicability of standards measuring defamation to an offence as vaguely defined as incitement to communal hatred between communities or racial and religious groups, (which rule incidentally would find many of the government’s own propagandists guilty in several respects), will undoubtedly be pressed in appeal. The application of this general standard to the readership of a little known magazine read not by the general citizenry but by a selective category is an allied question. Though a Buddhist priest, lawyers and a politician were called as witnesses for the defence to testify that the writings could not be construed as incitement to communal hatred, these opinions were dismissed on the basis that the individuals in question subscribed to a particular opinion in regard to the war and did not reflect the ’ordinary man’ standard. The contrary (and apparently single) opinion of the defence’s hostile witness was accepted.
Conviction upon a confession
Secondly, the conviction of the accused under Emergency Regulations on the third charge of obtaining money from an LTTE source to run this little known magazine, rested primarily on a confession.