The Court will deliver an order on December 5 on the voir dire inquiry – the mini hearing on the admissibility of contested evidence - in the case of journalist J.Tissainayagam.
Oral submissions in the hearing ended and the order on the admissibility of the reported confession made by Mr. Tissainayagam to the Terrorism Investigation Division (TID) will be made on that day.
When the case was taken up before Colombo High Court Judge Deepani Wijesundara, the prosecution began its submissions stating that the defence had been unable to make it appear to court that Mr. Tissainayagam’s ‘confession’ was involuntary because there was no clear stand in which room of the TID the confession had been obtained.
State Counsel reiterated that Mr. Tissainayagam had lied when he said he was threatened and that he was worried that if the threats were carried out he would go blind, because of his eye condition.
He said the accused had lied, because the accused had travelled to the uncleared areas and going to uncleared areas is a difficult journey which could have also affected his eye condition.
“But he had no fear for his eye condition then,” said the State Counsel.
The prosecution also said that the accused was an able writer and that since there were different dialects in Tamil, Mr. Tissainayagam could have introduced words hinting at his duress because the officer Razik was a Muslim and would not have understood all the dialects of Tamil.
The defence said its position was that the accused had been forced to make this statement and that ASP S. A. Ranasinghe had not been personally present when Mr. Tissainayagam’s statement was taken down.
The defence stated that the ASP in his evidence had said that on May 7, Mr. Tissainayagam had signed a gazette that the ASP had read and explained to him. This gazette was not tabled in court. The cautionary statement where the confessor is cautioned that his confession will be used against him and where the laws read out to the confessor are listed was typed on May 7 does not have Mr. Tissainayagam’s signature on it.
Therefore, because the document was never produced in court and there is no signature on the cautionary statement it shows that what Mr. Tissainayagam said was true - that he never expressed a wish to make a confession and that he had never met the ASP or been read a cautionary statement on May 7, the defence said.
The defence counsel said that the ASP in his evidence did not take the writing up of Mr. Tissainayagam’s confession seriously and that was why the ASP had missed out on so many steps. The defence counsel said that the TID had relied solely on the fact that Mr. Tissainayagam had been made to personally write out his statement to convince the court that it was voluntary. The defence said that the TID did not know that in the courts of Sri Lanka confessions given to independent authorities such as magistrates have been dismissed because the person who had allegedly confessed had known they would be sent back to the place of detention they came from, and therefore the threat to their lives would be great.
The defence said that Mr. Tissainayagam had given evidence to say that he was kept in the intelligence unit where other detainees were brought, questioned and assaulted. He heard and saw the pains of other detainees and rubbed balm over their swollen joints at night to ease their pain. He was continuously threatened during his time at the TID and he knew this to be a real threat because of what was happening to others. He had no private access to lawyers. It is in this environment that Mr. Tissainayagam was forced to give his statement to the TID, defence counsel said.
The JMO gave evidence that Mr. Tissainayagam’s colleague, Jasikaran, had been tortured while he was in TID custody and the defence did not counter this allegation but only argued on the date on which the alleged torture took place.
Therefore Mr. Tissainayagam’s evidence that torture did occur in the TID was corroborated, the defence said.
Secondly the defence said that it was evident that the ASP was not personally present on May 9 when Mr. Tissainayagam was forced to make his statement because the ASP clearly said that Mr. Tissainayagam was taken to the JMO on the morning of May 9 and only until the ASP was made to read the documents in court that the ASP realised that Mr. Tissainayagam was taken to the Eye Hospital and not to the JMO on May 9. If the ASP had actually asked Mr. Tissainayagam where he had gone on the morning of May 9 then the ASP would have known that Mr. Tissainayagam was at the Eye Hospital and not at the JMO’s.
Further, Mr. Tissainayagam had not signed the cautionary statement on May 9 but simply signed the statement that he was forced to make. Therefore this also reinforces Mr. Tissainayagam’s evidence that he had not been read any cautionary statement on May 9 but had been forced by officer Razik to write his statement. There was no ASP present and the cautionary statement had been typed later, the defence said.
The defence rested its case on the voir dire inquiry.