Court overrules submission to transfer Tissainayagam to prison

By T. Farook Thajudeen

The Colombo Chief Magistrate, yesterday, made order to continue the detention of journalist J.S.S. Tissainayagam, V. Jesiheren and Valarmadi Vaduvel with the Terrorist Investigation Division (TID).
The magistrate in his order stated that the suspects were detained by the TID on detention orders of the Defence Secretary, and produced before in court on the pleadings of the suspects’ counsel, and court had no jurisdiction to make order to remand them in prison.
On May 5 they were not produced in court, and the TID had informed court that they were taken away for some investigations. Accordingly the case was called on June 26, and the suspects were produced in court on that day. They were produced in court on that day on the application of the suspects’ counsel made on June 23.
On that day the seventh suspect’s counsel had complained that the fifth suspect had been tortured at the TID. The court ordered the TID to produce the suspect before the JMO for examination and report. The TID were also ordered to file a report.
The suspects’ counsel had subsequently brought to the attention of the court the Emergency Regulations of August 13, 2008, and submitted that detaining them with the TID was illegal since 90 days had already elapsed. Even under a valid detention order the question arises about the place of detention, he said.
The magistrate stated the question before the court was whether court had jurisdiction to remand them in prison
There is no jurisdiction for the magistrate to release the suspect without the Attorney General’s consent, according to the provisions of Bail Act, although the magistrate has the jurisdiction to enlarge suspects in bail when a suspect was detained for 90 days. If the OIC is of the opinion that the suspect should be released, the OIC is empowered to do so
On the lapse of 90 days, if the OIC is not continuing the investigating, the suspect should be produced in court for the court to make appropriate order.
If there is proof that the suspects had committed an offence and the investigations were not completed, they could be further detained, according to the Defence Secretaries Gazette notification. At the end of 90 days if the suspects were produced in court, it means that the investigations were concluded.
In this case the TID did not produce the suspects in court at the conclusion of the investigations.
In this case counsel for one of the suspects complained to court that the suspect had been assaulted and court ordered the TID to produce him before the JMO for examination and report.
At this stage the TID did not voluntarily produce the suspects in court. Neither had the TID reported that the investigations were concluded. Therefore to detain the suspect in a prison would result in the judiciary being found fault with for rupturing the investigations of the TID.
Accordingly, court dismissed the counsels’ pleadings and made order to detain the suspects with the TID.
The magistrate allowed an application to allow Tissainayagam to obtain a pair of spectacles after testing his eyes at the Eye Hospital. The case will be called on September 5
Counsel M. A. Sumanthiran and K.V. Thavarasha appeared for the suspects.