Journalists must be free to expose corruption

High Court Judgment in Athas case: 2 SLAF officers get tough sentences

The two convicted officers Rukman Herath and Sujeewa Kannangara being escorted by a prison officer

In a democratic country like Sri Lanka a journalist has all the right to expose the corruption and malpractices of any person regardless of their status in society, High Court Judge Sarath Ambepitiya observed in his order delivered on the Iqbal Athas case, convicting two Air Force officers for criminal tresspass, intimidation and unlawful entry with weapons into his residence. 

Judge Ambepitiya said the action of the two convicted were unbecoming of service personnel, who were bound to protect the public and not intimidate a person so as to discontinue him from engaging in a rightful profession of his choice.

The convicted officers were sentenced, on the first count to seven years rigorous imprisonment and Rs. 10,000 fine each, in the event of default one year additional imprisonment. On the second count they were sentenced to two years rigorous imprisonment. Both sentences are to run consequently.

The two officers of the Air Force, Squadron Leader Rukman Herath bodyguard of former Air Force Commander and Squadron Leader Sujeewa Kannangara head of the Special Airborne Force (SABF) were charged under the Penal Code section 32, read with section 444 for entering the premises of Iqbal Athas on February 12, 1998 along with a group of unidentified men with the common intention of assaulting and intimidating the journalist or causing fear of assault and intimidation.

They were also charged under Penal code section 32 read with section 486 for aiming a firearm at Iqbal Athas with criminal intimidation.

Ten witnesses testified at the trial in the Colombo High Court. Apart from Mr. Athas, his wife and a domestic aide, the officer who recorded the statements of the accused and presented them at the identification parade, the prison guard who supervised the identification parade, the Office Assistant who helped the Magistrate in the identification parade, the police officer who brought the suspects for the parade, the CID officer who conducted the investigations, the police officer who brought the witnesses to the identification parade and the police officer in charge of the Gangodawila Magistrates Court, gave evidence in open court. 

On behalf of the first accused there was one witness whereas the second accused made an unsworn dock statement.

Excerpts from the Judgment:

According to the evidence given by Iqbal Athas, he is the defence columnist attached to The Sunday Times and has been writing a series of articles about corruption by officers in the Armed forces. 

He alleged to have been threatened at gunpoint as a result of a series of articles written by him regarding the corruption alleged to have been committed by former Air Force Commander Oliver Ranasinghe. 

Thus it was necessary to prove beyond reasonable doubt that the two accused were present among the group that visited Athas' house.

For this purpose the onus lies on the plaintiffs to identify the two accused beyond reasonable doubt as there was evidence to show that the two accused were at two different locations at the time of the incident, the first accused being at the Air force mess and the second at his residence.

Iqbal Athas testifying in the case said, he is a journalist by profession engaged in writing for the defence column of The Sunday Times. 

He said that he had written a series of articles between the beginning of 1997 and end of 1998 regarding corruption in the purchase of military hardware by the armed forces. Further he had exposed the name of former Air Force Commander Oliver Ranasinghe as carrying out these corrupt deals. He stated that on 12.2.98, he arrived home from office around 8.30 and was watching TV with his daughter and wife. Moments later his daughter left the room with the intention of retiring to bed. 

At that moment Mr. Athas saw a person entering the room with a loaded 'Browning' pistol. Mr. Athas said his knowledge of weapons was due to his numerous visits to operational areas as a journalist. The intruder had then cocked the pistol getting ready to aim it at his (Mr. Athas's) head. 

A second intruder had entered at that moment armed with a similar weapon, ordered him out of the room and questioned him asking 'Ko badu". After a while they had left the place.

Corroborating his evidence the 2nd witness, his wife repeated the story as stated above adding that when asked, "ko badu" she had responded that such activities were not carried out in their house and they can go around and take a look for themselves. 

The 4th witness, a domestic aide submitted that at the time of the incident, he was manning the gate when some persons had asked for the first witness stating their wish to get an article published through him in The Sunday Times. 

He further stated that later they had pushed him and proceeded towards the 2nd floor holding him at gunpoint thereafter aiming the pistol at Mr. Athas. 

Although Mr. and Mrs. Athas together with the domestic aide were present at the identification parade, the domestic aide failed to identify the accused while Mr. and Mrs. Athas had identified the first and second accused respectively.

It is obvious that the two Attorneys appearing for the two accused have subjected the witnesses to a long interrogation in an attempt to show differences in the statements.

The first point raised by the defence was the discrepancy stemming from the fact that Iqbal Athas had mentioned the second accused as having asked "ko badu" which had not been recorded by the Mirihana police in the statement they obtained immediately following the incident. 

However Mr. Athas in evidence provided a good explanation stating that on previous occasions the Mirihana Police had failed to act on his complaints of threat. 

Thus he made a brief statement to the Mirihana police and a detailed one to the CID. The judge also observed that the powers of recalling the incident by a person who had just been threatened and intimidated was questionable as Mr. Athas was in a state of shock. Further the likelihood of every detail narrated by Mr. Athas to the Mirihana Police not being recorded was possible, as the question answer procedure followed in obtaining a statement would not facilitate the inclusion of all the details. The statement in the end contained the answers to the questions posed. 

The next point raised by the defence was the non-disclosure of the fact that the accused were armed, had cocked their pistols and aimed it at his head, by Mr. Athas to the Mirihana Police whereas it was included in the subsequent statement made to the CID. 

However this fact was countered by the evidence of the domestic aide Subramanium stating that the accused had mentioned the purpose of their visit as being to get an article published in The Sunday Times thereafter forcibly entering at gun point. 

As for the defence trying to establish that Subramanium had been coached to make such a statement to the CID fell through as he had made a similar statement to the Mirihana police the day following the incident. 

The defence failed to establish a doubt by way of the height of the accused, both being similar in height whilst standing on the dock as opposed to Mr. Athas' statement as one being taller than the other.Mr. Athas had come to such a conclusion without looking at their shoes. 

Further it was difficult for persons under immense shock to determine the height and weight of the accused. 

The defence also took the stand that if the accused had entered with the intention of harming the Athas' why ask them "ko badu"? (suggesting "where are the women").

However the judge observed that such an attempt was to cover the true nature of their deed, having also misled Subramanium on the pretext of getting an article published in the newspapers.

Obtaining the national identity cards and service identity cards by the CID was for the purpose of obtaining copies to facilitate the identification of the accused by the witnesses, was an argument put forward by the defence.

However it was countered by the evidence of IP Dhammika of the CID stating the accused having left their national ID cards at the entrance was part of routine procedure of the CID and requesting for their service ID cards was to ascertain whether they were officers of the SLAF. 

The argument brought forward by the defence suggesting the purpose of CID officer Hemantha's visit was to convey the copies of the photographs to the Athas'. However the Judge observed that such a deduction was not possible for if it was to make available such pictures it could have done so earlier and further the CID would not dispatch such important information by way of a junior officer in the department. 

Further if the photographs had indeed been handed over for the purpose of easy identification then both the witnesses should have been able to identify the two accused, which was not the case. Also human behaviour is such that if they had been showed the pictures they would not have run the risk of not identifying them at the first identification parade, the Judge observed.

Further it was perceived that all officers related to the conducting of the identification parade had acted independently and the identification parade had been conducted in an organised manner. 

The defence suggesting that their clients were in a disadvantageous position as the identification parade had been sprung upon them on the same day contrary to the general practice of the accused being held in remand, the judge saw as an advantage to the accused stating otherwise the accused would have to languish in remand for as long as a week. 

The argument that the accused were not afforded the opportunity to change their uniforms to civvies for the conduct of the parade, court did not accept. 

The CID had afforded them that opportunity as well as the Magistrate at Gangodawila, suggesting they could exchange clothes with the other participants in the parade. 

As for the accused being in different locations at the time of the incident it was countered by the evidence given by the defence witness Weerasinghe. His statement to the CID two months later that he remembered seeing the first accused at the mess, court found to be very surprising. Judging by his admission that there was no special incident to jolt his memory. 

Though the second accused's stating in his dock statement that he was at home in Kandana, court was of the view that it did not break the evidence of Mr and Mrs. Athas and their domestic aide all having stated that he had entered the Athas home armed. 

Further court took into consideration the facts that the first accused being the personal body guard of the former Air Force Commander Oliver Ranasinghe and the second accused entrusted with the duty of furnishing security to the Commander could result in them taking their vengeance out on Mr. Athas for exposing the corrupt practices of their senior. 

As for whether the accused had the common intention of committing criminal trespass and unlawful entry with weapons, it was established by the behaviour and the words employed by the two accused in the course of the incident. 

Further the accused had come together and left together. 

Thus clearly it was established that both the accused had entered Mr. Athas' home with the intention of intimidating him and preventing him from carrying out his profession. Thus court found the two accused guilty as charged. 
Triumph for democratic individuals, organisations

The Free Media Movement has hailed the High Court judgment in the Iqbal Athas case, saying that the sentence meted out to the two convicts — both Air Force officers — would act as a deterrent to prevent attacks on journalists.

The following is the text of the statement :

"The FMM welcomes the February 7 judgment of the Colombo High Court which found two Air Force officials guilty of criminal trespass, intimidation and unlawful entry with weapons into the residence of The Sunday Times defence correspondent, Iqbal Athas on February 12, 1998. The two Air Force Squadron Leaders were each sentenced to nine years rigorous imprisonment each and also ordered to pay Rs. 10,000 fine. We hope that this decision by the Courts will act as a deterrent to any future acts of intimidation and harassment.

"Journalist Iqbal Athas was subjected to this intimidation at the behest of senior officials in the Air Force who were angered by his reporting on the war. The Squadron leaders have been sacrificed because they carried out illegal and immoral orders issued by their superiors.

"Justice is yet to be done with regard to several other incidents of harassment and intimidation of media personnel by various agents of the state that took place during the same period as the intimidation of Mr. Athas. The FMM has already called on the new government to investigate and prosecute those responsible for such attacks, including the attack on media persons by the PSD on June 15, 1999, the assassination of Satana editor Rohana Kumara on September 7, 1999 and the assassination of journalist Nimalarajan on October 19, 2000. We take this opportunity to reiterate that call.

"We consider this verdict as a victory for the democratic individuals and organizations in Sri Lanka and media freedom groups and organizations abroad who joined the Free Media Movement in expressing outrage against the intimidation of Mr. Athas. This is because the government then in power had no option but to take action against the perpetrators in this case due to the lobbying and pressure on this case from within and outside Sri Lanka."