By Mass L. Usuf –
The protection of rights and violation of rights are two sides of the same coin and it takes a different dimension when the State is the violator. “The police and the armed forces must ‘respond’ and not ‘react’, and their response must be carried out within the framework of the law, as prescribed by law, and in a manner not exceeding the authority conferred on them by the law.” said, Justice Kodagoda addressing an event of the Human Rights Commission of Sri Lanka on 12th May 2023. Several adversarial acts by those in power which are normally considered wrong, becomes right, due to the manipulation of the law. This is how the politicians cunningly fight off or stifle dissenting political views and people’s clamour for justice and legitimacy. The politicians protect themselves under the refuge of the law.
Unlike in the United Kingdom where the Parliament is sovereign, our constitution states that sovereignty belongs to the people. In this background, to understand the web of juridical relationship between people’s sovereignty, fundamental rights and the State poses a legal challenge. The subtle deception seen in the Bill for an Anti-Terrorism Act (ATA) in furthering the spirit of its accursed precursor, the Prevention of Terrorism Act (PTA) raises the questions: (a) when and to what extent laws can restrict the freedom of citizens? and (b) the nature of one’s obligation to obey the law.
In the sphere of rights, there are two elements that need to be looked into (a) violation of a person’s bodily integrity and (b) violation of the rights of a person. They are two different areas but are intertwined. The violation of a person can extend from physical assault to the deprivation of exercising his conscience though the latter does not involve bodily harm. The violation of the rights of a person takes the form of depriving a person from his basic rights e.g. right to free speech, to protest, right to dissent, right to assembly and, so on.
All Things Being Equal
Restrictions on the right to exercise one’s freedom is often defended on the premise of, ‘national security’, ‘public order’ etc. as also seen in our constitution (Article 15). These are very good laws in order to minimise greater violence against other persons and property. However, there is an unwritten moral conditionality that is embedded in such laws and that is the principle of Ceteris Paribus (All things being equal). The gross violation of the economic, social, political rights of the citizens leading the country to bankruptcy is not consistent with the unwritten rationale of restriction of rights – all things are not equal. In these circumstances, to deprive legitimate dissent is a violation of both the person (integrity) and the rights of that person.
The Supreme Court of India in relation to interpretation of the law observed, “As it is a settled precept in the application of economic principles, that all other things will remain the same i.e., ceteris paribus, similarly, for the proper interpretation and examination of a provision of a statute, all bodies must be presumed to act effectively and in accordance with law.” K.B. Nagur M.D. (Ayu) vs Union of India on 24 February, 2012.
It is legitimate and, common sense, to assume that our Parliament when enacting such restrictions did so on the presumption that restrictions are applicable when everything is functioning in accordance with law and in keeping with standard norms and practices. Indisputably the government has violated the fundamental operative presumptions. It will be foolish to expect citizens to endlessly tolerate and put up with corrupt politicians and crony bureaucrats; Those who abuse the rule of law and make a mockery of the justice system.
Consolidation of power
The world knows that Sri Lanka continues to be governed by greedy, opportunistic, unprincipled and corrupt politicians. There is a sordid absence of the values of patriotism and visionary Statesmanship.
The diplomatic threat by the European Union highlights this reality. In a recent interview with the Daily FT (12/05/2023), Paola Pampaloni, the Deputy Managing Director for European External Action Service said, “Enacting the Government’s proposed Anti-Terrorism Act (ATA) in its current form could hinder the country from regaining the European Union’s GSP+ preferential trade facility.”
It is well established in writings that the principal function of human rights is to protect and promote certain essential human interests. The universality of human rights is grounded in what are considered to be some basic, indispensable, attributes for human well-being, which all of us are deemed necessarily to share. (See: Internet Encyclopaedia of Philosophy).
The general public, therefore, sees the ATA bill not as an instrument for the well-being or, to protect the citizens against terrorists but, clearly, as an extension to consolidate power, facilitate repression and provide legality to political machinations. Consequently, citizens will experience curtailment of their freedom and liberty in an ironical constitutional democracy. There has been outright condemnation of the Bill from a wide spectrum of the public not to mention lawyers, academics, rights activists, civil society organisations, religious bodies, the Sri Lankan Human Rights Commission etc.
Human rights are acknowledged as universal and indivisible. While universality is the call to extend these rights to every human being, indivisibility is an important qualifier. Examining the indivisibility and interdependence of human rights, it is noted that:
“ .. without the effective enjoyment of economic, social and cultural rights, civil and political rights are reduced to merely formal categories. Conversely, without the reality of civil and political rights, without effective liberty understood in its broadest sense, economic, social and cultural rights in turn lack any real significance.” (Hector Gros Espiell (1986) cited in Sur International Journal on Human Rights Issue 32, Dec. 2022).
Those who come to the streets today do so as they have been denied the basics of life. Simply put, three-square meals a day. In this context, what is the moral legitimacy to invoke restrictions on the basis of national security or public safety when the public is starving!
Besides the ceteris paribus argument, the trumping of competing rights has hardly been scholarly debated in this country. It is common knowledge that between two rights, the one which is weightier should triumph over the other. While the State has a right to invoke the restriction provided in Article 15 against dissenting opinion holders and demonstrators, the competing right of the people is that they are starving, have no medicine, children malnourished etc.
Our constitution has not constitutionalised socio-economic rights like in South Africa. According to section 7(2) of the South African Constitution, the state is compelled to respect, protect, promote and fulfil the range of socio-economic rights as a matter of obligation – a rule of law that must be accomplished. The remedial provisions enshrined in the South African Constitution is very broad thereby enabling the Courts to act against the State if it fails to accomplish its socio-economic obligations. (Judicial enforcement of socio-economic rights in South Africa (Chapter 16 Vol 2)  AHRLJ 32).
Contrast Sri Lanka and the disaster that has been brought about by the politicians. There is a gross failure on the part of the State to fulfil not only its socio-economic obligations but also health, education, transport, social welfare obligations. While there is no legal provision in Sri Lanka for judicial enforcement of the State’s obligations, at least the right for the people to come out and express their dissent and resentment at the state of affairs cannot and should not be denied.
The State should not use its powers to subjugate the people’s right to clamour for their socio-economic and other rights. In the hierarchy of competing rights the right of the State to use its power and the right of the citizens to demonstrate against the evils of the States, the latter right takes precedence. The citizen who is sovereign and whose rights are supreme should trump over conditional restrictions of Article 15.
The Bill which was published in the government gazette on 17th March 2023 purports to replace the existing monstrous Prevention of Terrorism Act (PTA). The PTA was enacted in 1979 purely as a temporary law by the then politicians, who were not any different from the current wave. Ludicrously, its longevity survived at least one generation. So much for the Temporary Provision. In this already disturbing condition, what good can be expected from the Anti-terrorism Bill except repression, intimidation, impunity, authoritarianism and violation of the constitutionally entrenched and universally guaranteed rights of the citizens.
As reported in the local newspapers Eight UN Special Rapporteurs and two Working Groups have written to the Sri Lankan Government expressing concern about aspects of the country’s proposed Anti-Terrorism Act (ATA). They wrote; “States should ensure that counter-terrorism legislation is limited to criminalising conduct which is properly and precisely defined on the basis of the provisions of international counter-terrorism instruments, and is strictly guided by the principles of legality, necessity and proportionality” (emphasis mine).
The consistent public opposition and international displeasure to this Bill forced the Minister of Justice to withdraw the controversial Anti-Terrorism Bill from the House.
The bottom line is that the public does not TRUST these politicians. Thus, whatever comes from them in any shape and form, however disguised as good is shunned by the public, who are fed up with the endless scheming and manipulations to either remain in power or grab power.
It would do good for the country and the people if:
1. The government shelves the ATA bill.
2. The government repeal the PTA and
4. Makes necessary amendments to incorporate new offences within the existing framework of the Penal Code, the Public Security Ordinance, ICCPR, the Criminal Procedure Code etc.