This guy’s in jail, actual LTTE spokesmen are out on bail
The week after Tissa was given 20 years for writing, two actual card carrying LTTE spokesmen were released on bail. Hence, being LTTE is pardonable, but being charged with meeting them or writing against the government (from a Tamil perspective) is not. Indeed, the current Chief Minister of the Eastern Province and a Cabinet Minister were high-ranking LTTErs, implicated in (among other things) the slaying of hundreds of police officers.
People talk about the court hearing the case and Tissa’s sentence being part of due process, but that fundamentally misunderstands what the Prevention Of Terrorism Act is. That and other Emergency Measures effectively suspend due process at the discretion of ‘the Minister’. It is a temporary measure for times of war or insurrection and it gives extraordinary powers to the executive. Tissa didn’t get 20 years for any particularly heinous crimes, he got 20 because the executive wanted to send a message.
In the same way, George Master and Daya Master (the LTTE spokesmen) are out not because of any particular legal procedures but because the executive cut a deal with them. The institution that’s suffered the most damage in the course of this war has been the judiciary, and their ‘legal’ stamp doesn’t mean so much anymore. We have an executive which is in daily violation of the 13th and 17th amendments and fundamental rights are suspended (under Emergency). We also had a Chief Justice who basically turned the judiciary into a rogue executive branch.
Whatever Tissa’s prosecution is, it’s not justice. A writer gets 20 years for ‘riling up communal tensions’ and supposedly meeting the LTTE while actual LTTErs who actively fought against the government and supported terrorism get off, or rewarded. This is many things, it may even be good Machiavellian politics. It is, however, not justice. It doesn’t even make sense.
Indi,
Surely you would’ve researched this? The government was responsible for detaining him and presenting him in court. What his lawyer managed to do, or not do, is no fault of the government.
I hope you read all the media notes from the hearing? You know Tissa’s lawyer was an incompetent buffoon! No one in the government thought he would get 20 years!
er, what? Blaming this case on the lawyer is weak sauce.
He was prosecuted by the government and held under the PTA, a law which suspends other law at the discretion of the executive.
The government brought this prosecution just as it chooses not to prosecute Daya Master or Karuna, even supplying the latter with false diplomatic papers to England. This is not some quirk of the judicial system, these are executive decisions. You can defend them on a real politick level, but offer excuses like the lawyer is a bit silly.
I try to give the government credit where it deserves it, but it also needs to take responsibility. They brought the case, and one phone call from a Rajapakse and it would have been dropped.
Machang there are many LTTE spoksmen like Indi Samarajiva are out on the loose. They should be locked up as well ? Get well soon !
weak sauce?
this is the same difference as violating port security and being thrown in jail for a week or getting that one phone call and being freed in a few hours. in that little story, you’re not Tissa – you’re Daya Master. Isn’t perversion of justice grand? (at least, when you’re the beneficiary). It doesn’t take an executive decision. Wonder if the fishermen imprisoned in navy bases for violating the coastal HSZ have someone to call and bail them out?
I try to give you credit where you deserve it, but you also need to take responsibility :)
If there was one phone call from a Rajapakse and the case was dropped – the executive would have subverted justice in three cases instead of just two.
Whether it’s just or not isn’t something we can sensibly debate. But it definitely makes sense. From the government’s perspective, Tissainayagam, Daya Master and Karuna threaten the security of the state. Daya Master and Karuna, however, have chosen to repent and join the mainstream – and therefore they no longer threaten the state; the government is pretty confident they’re not going to be linking up with the remnants of the Tigers, if they exist (and given the circumstances in which DM & K defected and the rumours as to the information they’ve fed the government, I’d say the government’s spot on in this). Tissainayagam, in contrast, chose to stick to his guns, and ergo remained a potential threat to the state – the government believes that there is a danger he’ll continue with his nefarious activities. Conclusion: He needs to be locked up, whereas DM and K don’t.
The logic to this is that the PTA, as its name suggests, is intended principally to be preventive – i.e., to lock up those who’re likely to harm the state by becoming or linking up with terrorists. Punishing terrorists who’re done with harming the state isn’t its main purpose, although its provisions are broad enough that they could be used to that end. In locking up Tissainayagam and letting DM & K walk, it’s working as intended.
No, I don’t think Tissainayagam should’ve been locked up. I also don’t think the Government should’ve gone all guns blazing into the Vanni knowing it was going to kill a whole lot of its citizens. But it fits with the logic of the PTA, and it fits with the logic of the way the government approaches the Tamil question.
you assume there is a logic to the ‘gov’ts’ approach to the Tamil question. Not a series of political calculations designed to reap maximum short-term benefit for those calling the shots.
The message to Tamils is clear: if you are member of any elite, be it economic or terrorist, you will get a free pass in exchange for what the gov’t thinks of as actionable and valuable intelligence or pr-worthy public sucking of Mahinda’s veiny cock. the public is gullible enough yet to believe that one-way oral favors are a political 69.
clear? yes. logical? no.
Justice? Hmm Maybe the judge should have thrown out a confession allegedly extracted under duress and carrying unauthorised alterations too?
Maybe, just maybe, the judge needs to ask why is took five months to even charge him? And why the original charge of “bring the government to disrepute” (there is no law against that) had to be later jigged to fit the PTA?
Were expert opinions from bankers, accountants and auditors obtained as to the source of funds and as to where they were utilised to prove the charge of receiving funding from LTTE and its use in promoting the LTTE?
Also see
http://www.thesundayleader.lk/20090913/convicted.HTM
About the confession thing….
“And that was not the only defense debacle. In any criminal case, the first thing that any defense lawyer would do is to have any confession signed by the defendant while in custody declared inadmissible as evidence. Sri Lankan law does not allow non-voluntary confessions to be admitted as evidence. When the court decided after an examination that the confession signed by Tissainayagam had been voluntary, the defense lawyer had failed to appeal against this decision at that stage. The judgment in fact specifically states that the defence had the opportunity to appeal against the decision to admit the confession as evidence, but that they did not avail themselves of the opportunity.”
“…Later, however when what was said in the confession began to tally with other evidence presented by the prosecution such as records of telephone calls and details of bank deposits and withdrawals, the defence had raised objections to using the confession as evidence. The court had not been inclined to entertain these objections at that stage”.
http://www.island.lk/2009/09/06/politics1.html
Well sorry to keep quoting this like the gospel but this is what seems to have happened in the Tissainayagam case in Sri Lanka Planet Earth. Basing one’s arguments on what happened in Parallel World Earth1 will only muddy the waters in my humble opinion.
“Maybe, just maybe, the judge needs to ask why is took five months to even charge him? And why the original charge of “bring the government to disrepute” (there is no law against that) had to be later jigged to fit the PTA? “
I fear the above was written after another trip into Parallel World Earth1
Correct me if I am wrong but I seem to have heard somewhere that in Sri Lanka Planet Earth the legal system is an adversarial system which doesn’t generally support inquisitorial feats from the Judge such as outlined in your comment.
Let me quote Wikipedia
“The adversarial system (or adversary system) of law is the system of law that relies on the skill of each advocate representing his or her party’s positions and involves an impartial person or group of people, usually a jury or judge, trying to determine the truth of the case.[1][2][3] As opposed to that, the inquisitorial system has a judge (or a group of judges who work together) whose task is to investigate the case.”
“…The adversarial system is the two-sided structure under which criminal trial courts operate that pits the prosecution against the defense. Justice is done when the most effective adversary is able to convince the judge or jury that his or her perspective on the case is the correct one.”
“An inquisitorial system is a legal system where the court or a part of the court is actively involved in determining the facts of the case, as opposed to an adversarial system where the role of the court is solely that of an impartial referee between parties.”
this thing about the confession not being challenged is absolute drivel. the confession can still be challenged in appeal. the decision to admit a confession is appealable interlocutorily or as part of the appeal of the final order. a challenge to the confession while the case was pending would mean that the suspect remains in custody for the entire period during which the appeal is pending. criminal appeals generally take about 3-4 years, maybe even more. it made more sense to see the trial through, and hope that mahinda would relent and order an acquittal, than go to the court of appeal and sit there while Tissa was in custody for years.
just this one bit of information should suffice to convince open minded folks that the Island article is absolute bunk. the rest of it is bunk too, if someone wants to throw something at me, i’d be happy to oblige.
SL army high command, when you said that indi and the guys were having a moment in your comment in the earlier Indi post on Tissainayagam I wanted to say “Surely if you are having a moment I don’t want to interrupt but make sure it’s a sincere genuine true blue moment and not a schmaltzy, fake moment where every moan, heave, palpitation, goosebump and spasm is cold-bloodedly pre planned to serve an agenda” But I didn’t have the time to make that comment. I am now glad for failing to make that comment because I now think that indi is having a genuine moment. Look at the photo on this post. It tugs at your heart does it not? Not only indi many people are having genuine moments all over the media. Especially when they think about what Tissa’s days must be like now. Wearing that jumper, sleeping on the cement floor, hard labour, bad sanitary facilities. For what? Writing something.
When I first heard of Tissainayagam’s 20 years RI I didn’t know anything about him except that he was being punished under the PTA for what he wrote. I thought whatever he has written he does not deserve anything much more than a suspended sentence and maybe a reprimand. Because of how his eyes looked under his thick bifocals. I thought they were visionary’s eyes. They reminded me of my alcoholic first cousin’s eyes under similarly thick bifocals. In my childhood I used to have a violent crush on this cousin (He subsequently married and turned into a wife beater). What inspired this crush was the way my cousin’s eyes looked through his thick bifocals. Some mornings he would sport a lens with a web of cracks radiating from a point of impact during the previous nights festivities and his eye would peer at the world with this web of cracks as the backdrop looking vulnerable, omenish, fascinating and just crying out to be saved and nurtured and loved. However that is neither here nor there. Except to serve as a point of reference for my initial fascination with Tissainayagam’s eyes which I thought would be validated and reaffirmed by his writings. Then I happened upon the samples of his writing and disillusionment replaced the fascination.
And that is the most compelling reason why he should have been allowed to write and propagate his brand of ideology as much as he wanted and in anyway he felt inclined to. Even go around the country in a trailer giving speeches, speaking on soap boxes etc. Because we could have fought that brand of ideology on the beaches, on the landing grounds, in the fields and in the streets, in the hills …in print, on blogs.
And we could have defeated it easily because for all his talk of CONSTRUCTS in the article he wrote traitorifying Kadirgamer (“he had become a construct, which anti-Tamil forces could exploit for their own purposes… the construct was very carefully built, including what Sinhala nationalism wanted to project and rejecting what it wished excluded”) Tissainayagam was busy fabricating his own CONSTRUCT very, very carefully including what would support and be compatible with his ideal (masquerading as a progressive wish to reform the existing State structure and make it more inclusive and pluralistic but in reality a wish to reform the existing State structure and make it exclusively inclusive of the LTTE) and rejecting whole chapters of reality that would make the above ideal untenable and indefensible.
Just one example of Tissa at his CONSTRUCT building.
Tissa’s CONSTRUCT – The Government is not going to offer the Tamils any protection. State Security Forces are the main perpetrators of the killings. Government’s offensives against the Civilians are accompanied by attempts to starve the population by refusing them food as well as medicine and fuel with the hope of driving out people and depopulating.
The REJECTED REALITY by Tissa in creating this CONSTRUCT – The World Food Programme had been distributing food through the Government Divisional Secretary. There were Government Hospitals and Government Doctors even though it was an LTTE controlled area (As testified by the witness for the defence)
He built constructs to serve an ideology. That ideology was fragile. Had it been strong and sound it would not have needed constructs to support it. The bare, unadorned reality would have supported it. The very air would have supported it. Instead that ideology survived and thrived only because of CONSTRUCTS such as Tissa’s and the one given below
“…Still, it is clear the Tamils have been persecuted since Sri Lanka was granted its independence in 1948. The ruling caste when Britain ruled the island, the Tamils have since been legally denied government jobs and places in business merely because of their ethnicity..”
http://network.nationalpost.com/np/blogs/fullcomment/archive/2009/09/01/national-post-editorial-board-sri-lanka-s-abuse-of-press-freedom.aspx
They should have let Tissa go on building his dewy CONSTRUCTS. They would not have stood up to the sunlight of reality and sound reasoning. But instead they have dragged him and his dewy CONSTRUCTS into a shadowland created by the PTA. There they will be glamorized, heroefied and martyrified. This is what happens when you interfere with freedom of expression. The most mundane utterances gain weight.
Finally I will quote here a rough translation of an excerpt of a poem on Tissa I saw in a Sinhala newspaper over the weekend. It is a rough translation only due to my limitations in poetry. The original was much more impactful and severely affected me.
“ O people who have forgotten that the sure end of the intercourse of victory is the disillusionment that follows orgasm
have you really forgotten that this man, whom you nailed to the cross, whip lashed and soles split open, this dangerous man, once loved you too? (A reference to how he helped MR go to Geneva with the evidence of the State’s atrocities against the rebel youth of the South. Which evidence the court cold bloodedly disregarded saying irrelevant to the present case)
What mutation in your eyes made you see this pen which was to you a mighty sword two decades ago as a poisoned dagger now?
You the spineless, the conscienceless, the shadowless, you have buried in the quagmire of your blood thirsty patriotism your own blood relation who would have risen in love against the lashes of the whip that would fall on your back tomorrow”
Tissainayagam I hope you come out on Appeal and start living up to this legend. Start earning this love.
Thanks to
1) http://bailaman.blogspot.com/2009/09/curious-case-of-j-s-tissainayagam.html
2) Commenter Sumith at above
3) Ravaya
Oh Christ! “Weak Sauce”.. That just portrays your knowledge on this case. You probably know a lot about his judgement from reading a news article written by someone sitting thousands of miles away from Sri Lanka, who just regurgitates agency reports. Right?
Colombo High Court Judge Ms. Deepali Wijesundara had no choice but to give him the sentenced outlined by the anti-terrorism laws in front of her.
His lawyer failed to dismiss his confession as ‘under duress’. All legal experts who have followed court cases in Colombo were shocked by this. It is pretty obvious to me that you don’t know the whole story.
Do you?
I don’t argue that his detention was wrong? I am not one of those who blindly follows and accepts anything the government does. I’m telling you that his sentence of 20 years was as a direct result of his lawyer’s incompetence.
stupid murderous government is getting what it deserves with the GSP. EU making the people suffer? The Rajapaksas are making everyone in the country suffer, no one else. would rather let the garment workers starve than let the world see how they’ve been butchering everyone like barbarians and give up their own power and privileges. MR will stay fat and happy through it all, you watch him. why doesn’t gothabaya give up his american citizenship and kohona give up his australian citizenship if they hate the west? because once they’ve stopped robbing the idiot cattle that make up the population of sri lanka, they will run out the back door and let all the happy, idiot patriots sink and drown in their own cesspit.
so you are saying:
1. there was no prosecutor. Tissa and his lawyer were alone in front of a judge.
or
2. there was no prosecutorial discretion exercised. Tissa and his lawyer sat in front of a judge and next to a simpleton.
or
3. Tissa, a man of some education, allowed his counsel to let the admittance of his confession-under-duress go without a single objection.
or
4. Tissa did not get a trial. He was read a list of alleged crimes, the accusations were rubberstamped by judicial authority and he went straight to jail–a journey made possible by a pliant counsel, typically overzealous prosecutor and spineless judge.
Oh God. A lawyer can’t dismiss a confession. He can challenge it. Tissa’s statement was challenged. The challenge was dismissed. There were two options open at the time. Either appeal at that point, or wait for the entire case to be over and appeal the whole decision, including the confession after the trial. That is what happened. For why a lawyer would want to wait till the end to appeal in a PTA case, refer my response to Rathnwalli above. Stop spreading disinformation.
u know… it is unbelieable to me, the amount of naivete most of u have.
no one knows everything. ok fine, no problem about that. but the problem i do have is with people who dont know and YET go and talk garbage. a FEW people like indi have the humilty to say they don’t know the facts; and the common sense and decency to make use of what facts he does have and make fair tentative statements, based on that. why the heck cant the rest of the commentors, other than a few of you, do the same?
Can someone also start talking sense like aadhavan does? i dont know if he knows all the facts or not, but clearly he is talking sense based on the facts he knows. there’s a clear simple expalnation he gives as to why, perhaps, the confession issue might not have been appealed. when i first
@bailaman:
I hope you read all the media notes from the hearing?
errr…. what media notes? how much of the media have been covering this entire issue PROPERLY ever since the case began? most of the media – and even the fai and unbiased and non racist part of the media – plain and simply haven’t reporting the day to day proeedings, or do so very sporadically and incompletely. Some one who – unlike aadhavan – doesn’t understand the practical realities of court cases and appeals and the wheels within wheels as it were, just goes and writes some drivel and decides to pin the blame on the defence. Yeah, I’m not surpirsed to hear that this theory was in the Island. they have some good stuff, but on certian issues they have a misguided view, based on a racist or wrong idea of patritoism.
All or most of you have missed out 9or ignored, in some cases) what indi first stated “…misunderstands what the Prevention Of Terrorism Act is…” – he’s hit the nail on he head there; how come none of you tackle what he says there? And @”SL army high command “; u completely miss the logic; if there executive knew that some case was onging based on a bad draconian law, then it would be quite correct to ‘make a call’ and get the case called off. You, SL army high command, however, seem to be ignoring what indi pointed out about that Act.
@ratnawalli : adversarial it may be not; but that doesn’t change the fact that a judge has to at least ask him/herself whether the facts all help to prove beyond ‘reasonable’ doubt, or whteher those facts leaves room open for reasonable doubt – if the latter, the the verdict has to be not guilty. moreover ratnawalli seems well versed on the adversarial aspect; but not on the idea of ‘beyond reasonble doubt’? ratnawalli and some others seem to be onfusing civil cases with criminal cases; in the forme, whichever party has a more side of jms. will wit; thus is NOt so in crimnal cases, where the onus is on the prosecution to prroe the defendant gulty beyond reasonabledoubt; whereasthe defense does NOT NEED to prove the “innocent beyondreasonable doubt”.
Nayagan,
What would give you the notion that I implied ‘there was no prosecutor. Tissa and his lawyer were alone in front of a judge?”
Both you and aadhavan need to apply some common sense. When I said ‘dismiss’ I did not mean legal jargon, but challenge it, and dismiss it saying it’s unreliable.
There are other articles out there from people who were actually present in court. It would be best if you know ALL the facts, and not just some.
Why don’t you guys read every word of the following?
http://www.island.lk/2009/09/06/politics1.html
Yes! Daya Master and George surrendered and cooperated. They had enough of wars and rebellions. Tissanayagam did not. In any case the government has said he has a chance to appeal. Pro-Jihadi Journalist detained in the US have not even been given an open trial. This is a fact.
bailaman,
you seem to appreciate the ostentatious display of ‘fact-based’ neutral analysis, so i’ll oblige your curiously selected first world–third world comparison.
Google, “Hal Turner.” Read about what he’s had to say about the US Gov’t. Then google, Glen Beck. A man with a several-hundred million dollar radio and TV contract. Someone who on a nightly basis tells anywhere from 10-20 million viewers that something is deeply wrong with the us, that Obama hates white culture, that the Federal Reserve is a conspiracy and that massive “grass roots” action will need to take place in order to fix what is allegedly afflicting our polity. Neither man is in prison. This is a fact.
Still don’t believe.
ok, here goes: HI US Government. My friend here can’t understand why Tissa’s sentence wasn’t as Indi here explained.
So:
1. The civil war was clearly unjust and settled in a manner disproportionately and immorally deleterious to the economic and emotional health of the southern white male. We should, forthwith, proudly uphold the traditions of our forefathers and be a martial race unto ourselves.
2. The CIA invented AIDS and gave it to black people in america. there is incontrovertible proof of this located in a document called the Protocols of the Elders of Zion.
3. George Washington was a flagrant homosexual. And God Hates Fags.
if I do disappear, i guess you’ll be vindicated. After all, I just incited communal tension three different ways…from Sunday!
i read it when it was published online. I was fishing to see if you knew how the trial was conducted and if you realized that his lawyer DID contest the admittance of the confession and the Judge saw fit to not consider the request–and for no stated reason. not even in this ‘news’ item. This wouldn’t qualify as reporting even at the Turdsville Gazette. If the other items you have are of equal quality, i wouldn’t bother passing them along. If the 5 Ws aren’t in chronological order, it’s a pissbucket.
Daya Master and George Master were released by the CID on the grounds that there was, ” no evidence to suggest that the suspects had propagated the separatist cause” NOT that there was substantial evidence of moral soundness and peaceful behavior.
now, apparently, they will be tried under ‘general law.’ I wonder if the local cops can find what the mighty CID could not.
http://www.sundaytimes.lk/090913/News/nws_16.html
question – does SL treat political prisoners in a different way than the normal criminal ?
so in all reality would be be treated as a political prisoner and have better access to appeals, accommodation etc ?
I don’t get what the US even has to do with this case. It’s a bit of a ‘look over there’ rhetorical tactic. Other people may be messing up, but that shouldn’t be our moral benchmark (or excuse)
In my case the people who would press charges chose not to, because the incident was harmless. Cases generally involve two parties and they can choose to drop charges, settle, etc.
I still don’t get how 20 years is in any way proportional to what the guy wrote. It’s just cruel.
Sorry, a small correction (I must have been half asleep when typing that last para unintelligbly and didn’t noticed my messed up copy-and-paste) : what I meant to type was :
ratnawalli and some others seem to be confusing civil cases with criminal cases; in the former, the general tendency is that whichever party has a more believable set of facts for his side, will be the “winner” of the case; thus is NOT so in criminal cases, where the onus is on the prosecution to prove the defendant guilty beyond reasonable doubt – whereas the defense does NOT NEED to “prove the innocence beyond reasonable doubt”.
I also hadn’t completed my earlier para which ended incompletely in “when I first “… :
When i first read that newspaper article which was blaming the defence counsel, I too was rather shocked and wondered whether all this was accurate; however I realized that there are probably plenty of good reasons, reasons which the newspaper article – unprofessionaly – did not speculate upon and instead just made its own conclusions. clearly there are good
Does anyone really want to make a fair unbiased conclusion about all this? Then, get the judgement; get the proceeding; get a complete history of what happened (and didn’t happen) during the 5 months in which he was incarcerated without charge, supposedly to “investigate” – albeit, how little “evidence” was found and presented thereafter. Look at the INITIAL charges and see what was charged and honestly ask yourself whether the facts are compatible with the theory of someone trying by hook or by crook to find some excuse to wallop this chap. LOOK at the PTA and read up about the reasons for its criticisms (as I have done and Indi appears to have done) to understand why it is claimed to be “draconian”.
Also that judge should have excused herself from the case. The judge’s sister prepared the charges.
“…more sense to see the trial through, and hope that mahinda would relent and order an acquittal,..”
Oh? In Sri Lanka, Parallel World Earth1, the judge’s name was Mahinda? Here in Sri Lanka, Earth the judge was a lady called Ms. Deepali Wijesundara and only she could order an acquittal. Oh the key word here is ‘relent’ no? Since a judge has no business to ‘relent’ and order acquittals instead of based on evidence I assume you are talking of an Executive pardon.
Oh? So Executive Pardons are so common over in Parallel World Earth1 that defence counsel plan their moves in anticipation of them? Over here Executive Pardons are so rare because Executive is generally wary of sending the wrong message, setting the wrong precedent, being accused of subverting Justice, etc. As far as I have heard (I may be preposterously wrong of course) the last Executive Pardon was when JR was bucketing around being an 80 year old Machiavelli and he pardoned Gonawala Sunil, the rapist and that it’s generally agreed stank to high heaven.
The time sequence of events in the trial according to the island article is as follows
1) After an examination Court declares confession voluntary and admissible
2) The defence fails to appeal against this at this stage (“The judgment in fact specifically states that the defence had the opportunity to appeal against the decision to admit the confession as evidence, but that they did not avail themselves of the opportunity”.)
3) Later the defence raises objections (“Later, however when what was said in the confession began to tally with other evidence presented by the prosecution such as records of telephone calls and details of bank deposits and withdrawals, the defence had raised objections to using the confession as evidence)
4) The court doesn’t entertain them (“The court had not been inclined to entertain these objections at that stage”).
This is how you explain 2) – If the defence had appealed against 1) interlocutarily (during the trial), the trial would have been dragged for 3/4 years (because “criminal appeals generally take about 3/4 years maybe even more”) and during this entire period the man would have to be in custody. What you imply is even then there was no guarantee that this interlocutory appeal would succeed in getting the confession dismissed. And even if the interlocutory appeal was successful there is no guarantee that would change the ultimate outcome of the trial. So rather than gambling 3/4 years of the defendant’s life on a hope it’s much better to allow the trial to conclude within months and then hope that Mahinda would Pardon and then only if that hope is dashed, spend the next 3/4/more years for the appeal.
Your explanation is certainly compelling but is it right? Challenging the admissibility of the confession during the trial would have taken 3/4/more years? Eureka! Here is the answer to the burning question that has baffled the island writer and his entire readership.
Adhavan the readership is plenty baffled? Look here
“I was fishing to see if you knew how the trial was conducted and if you realized that his lawyer DID contest the admittance of the confession and the Judge saw fit to not consider the request–and for no stated reason” – Nayagan
“Tissa’s statement was challenged. The challenge was dismissed” says you. You obviously are talking about the ‘examination’ mentioned in 1).
This is the preliminary examination of evidence conducted to decide on admissibility and at this ‘examination’ you are saying the defence actually did point out that the confession was made under duress, there were unauthorized alterations, the language of the confession was not familiar to the accused and etc. But the Judge dismissed all those concerns and in spite of them, in spite of stated objections of the defence ruled the confession as voluntary and admissible. But aadhavan are you talking from true observations or are you guessing like mad? I just had this sudden wave of inspiration, this gut feeling, this intuition aadhavan that you are guessing like mad.
It does not tally. It does not ad up. I put it to you aadhavan that the prelim examination of evidence doesn’t involve any challenges by the defence or counter challenges by the prosecution and just involves the judge looking at the evidence as it is and that the correct forum to challenge is after the judge had ruled on the admissibility of the evidence. So I think when you say Tissa’s confession was challenged but it was dismissed you are improvising like mad. Come now admit it.
It is clear that to the readership of the island article the phrase ‘defence challenged the confession’ means 3) and it is implicit in the article why the judge dismissed this challenge; because it came too late. Because these objections were raised LATER and not at the appropriate stage.
But you are trying to show that these objections/ this challenge happened in 1) because it would be fatal to your line of argument if the defence objections and challenges to the confession had come at 3) That would raise the question, if the defence’s decision not to challenge the court ruling on the admissibility of the confession was a well thought out, strategic decision what the hell was the defence counsel doing raising objections to using the confession as evidence at a later stage? There aadhavan I believe I have bested you and your strategy of ‘pull wool over their eyes if you can’t defeat them’ now stands exposed.
“just this one bit of information should suffice to convince open minded folks that the Island article is absolute bunk. The rest of it is bunk too, if someone wants to throw something at me, i’d be happy to oblige”
Well the fabled open minded folks stand unconvinced aadhavan. The article will remain in many open minded folks’ minds as a sterling article. A clear concise brilliant summarization of the jarringly curious points of the case.
You wanted to be thrown things so you could prove the rest of the article was bunk too. What about these?
1) Why did the defence lawyer not ask that the 5 years + 5years run concurrently to the 10 years so that the entire sentence could have been 10 years instead of the present 20? (“What takes the cake is that when the sentence was pronounced, Tissainayagam had been given ten years for one count and five each for the other two, making it twenty in all. The defense lawyer had not requested that these sentences run concurrently, so Tissainayagam had ended up with 20 years! This raises the question as to what is going on? )
2) Why did not the defence choose their witnesses more carefully? Why choose someone likely to end up testifying against the defence?
So there I have thrown. Now oblige.
@ Leanie Meanie I am well aware of the difference between criminal vs civil cases thank you and the onus of proof beyond a reasonable doubt vs a balance of probability. Elementary no my dear Watson? Get some sleep that will help.
And all of you guys I hope you had an unbroken 8 hours after staying up all night fighting this case at this forum.
Oh @ Nayagan your version of the curious first world-third world comparison doesn’t stand up. Every government, third world or first world has ways of separating the wheat from the chaff in dealing with freedom of expression of its populace. What to allow, what to ban, what’s really dangerous, what’s merely hot air. Just like in the USA the Pro-Jihadi Journalist detained has not even been given an open trial while at the same time all those examples you have cited are allowed to express themselves without restraint, in SL too Tissainayagam has been prosecuted but lankaenews.com who reports snippets such as ‘both mahinda and namal are keen on anarkali and shiranthi is pissed about it’ survive and thrive. Maybe governments have their ways of knowing which barking dogs would really bite. No doubt the American government is more clever at this than the SL government. Americans being naturally cleverer, more suave and more sophisticated. But the US once they identify real danger to the State deal with it harshly.
the confession was challenged in a voir dire inquiry, which ran for about two months. the moment the statement was marked as evidence, defence counsel objected to it, pursuant to which there was a mandatory voir dire inquiry. just google this stuff up. there were witnesses, submissions, (written and oral). I mean, you really are misinformed. if you’re too lazy to get yourself a copy of the court proceedings, a cursory google check will throw this stuff up in seconds.
http://sundaytimes.lk/081130/News/sundaytimesnews_06.html
there, you look like a fool now. hehe
And yes, it makes no sense to spend years in appealing an interlocutory decision, when you know the trial will be over in a matter of months, and you get to appeal all the decisions, final and interlocutory, once the trial is over. if the trial goes your way, well and good, if you lose, nothing lost, since you still have an appeal. Elementary stuff really.
As for sentencing, the defence is heard BEFORE the sentence is delivered, not AFTER. Once the judge delivers sentence, you can’t start negotiating the terms. That’s ridiculous.
The defence’s position was that in the light of precedent, the truth or falsity of the claim had no bearing on the question of whether the suspect was liable under the relevant section. That is black letter law. The defence put up witnesses, some of whom testified that what Tissa had written was True(vasu, some who said that only an independent inquiry can verify the veracity of the claims(manouri m), and some who thought parts of the claim were not true(YK). ALL THREE SAID THAT THE PASSAGES WERE UNLIKELY TO CAUSE VIOLENCE. From a legal standpoint, while YK Desilva didn’t agree with Tissa, his testimony certainly wasn’t incriminating. Rather it supported his legal position completely. In closing, defence counsel said persons with divergent views were chosen to reflect the fact that whether or not you thought the assertions were true, they were demonstrably unlikely to cause racial violence. The judge however, laughably used a civil defamation principle to convict Tissa in a criminal case. It would be funny if it weren’t tragic.
you have won for the time being
I think we are missing a critical point regarding Tissainayagam’s case. Writing inflammatory articles against the government is nothing new and plenty of journalists do this with impunity. However taking money from a terrorist organization to write these articles is an offense and will be prosecuted under the laws of the land. Someone above used the example of Glen Beck and is correct in saying that he spews inflammatory drivel on a nightly basis without the fear of prosecution. But hypothetically if Beck ever received funds from Al Qaeda to do so.. I can assure you he will be renditioned (without trial or court appearance) to some isolated/secret location where he will be tortured repeatedly to yield information. Abetting terrorists and their activities in any manner is a crime in the US. With that in perspective Tissa’s appearance in court and sentence is following due diligence and within the laws of the land.
that comparison is Bailaman’s SOP–and everyone who thinks “fuck hillary clinton” is a substantive political statement.
it is also mine, but mostly because I live here and I’d like you all to come on over.
Tissa lost…20 years
He lost ………for the time being. Because as you say they decided to save the best punches for a different arena ,a higher court, a different judge. Also the battle is fought on several fronts; the Supreme Court FR case, the appeal, international forums, public opinion.