20 October, 2017

Swords, Scales And Blindfolds: The Law Has Let Us Down Again

By Gehan Gunatilleke –

Gehan Gunatilleke

Gehan Gunatilleke

When injustice becomes law, resistance becomes duty- Thomas Jefferson

Justice stands boldly, armed with a sword and tempered with scales. Her blindfolds demonstrate her impartiality. She wields the Law and bends it to her will. Yet the Law is prone to misuse when stripped from its true mistress and usurped by tyrants. They use her sword to strike the innocent; manipulate her scales to subjugate citizens; and apply her blindfold to conceal atrocities. Law without Justice is perhaps worse than no law at all.

Throughout history, unjust laws have compelled resistance. The civil rights movement led by Martin Luther King Jr. sought to repeal or revise oppressive laws that deprived the African American community of basic civil liberties. Likewise, Anti-Semitism in Nazi Germany, apartheid in South Africa, and the statelessness of plantation Tamils in Sri Lanka were all once sustained by laws, and were therefore considered ‘legal’. The liberation of those victims became possible only when those oppressive laws were eventually abolished.

Sri Lanka is at a critical juncture in its own history, wherein citizens must pause to judge the Law. We must reflect on whether the Law, in its present incarnation, is our friend or foe.

The Sword

Time and again, the Law in Sri Lanka has been employed to torment the government’s opponents. It has been wielded like a sword to strike down dissenting voices. The Prevention of Terrorism Act (PTA), for instance, was enacted in 1979 presumably as a temporary measure to curb terrorism. Yet its preamble fails to offer even the courtesy of subtlety, as it presents the principal object of the Act as preventing ‘governmental change’. Consumed by fear, we permitted this Act to become a permanent fixture in our statute books. For more than thirty years thereafter, the PTA was selectively applied to target ethnic minorities.[1] In 2009, J.S. Tissainayagam was found guilty of committing an offence under Section 2(1)(h) of the Act. This provision criminalises words spoken or written with the intention of ‘causing the commission of acts of violence or racial or communal disharmony’. The prosecution argued that the Tamil journalist, by accusing a predominantly Sinhalese Army of committing atrocities, had intended to incite acts of violence by Sinhalese readers against Tamils. This argument was sufficient to convince the High Court. During the early 1990s, a middle-aged Tamil couple was found guilty under Section 5(a) of the PTA for failing to report a suspect to the police. The prosecution argued that the couple personally knew the suspect and that he was suspected of committing offenses under the PTA. Yet the suspect was never charged. In a bizarre twist of irony, he sat in the courtroom as a free man witnessing his so-called ‘supporters’ being sentenced for their failure to report him.

Recent events have exposed the comically grotesque nature of the PTA. A speech at a public rally in Aluthgama could not have fit the ambit of Section 2(1)(h) of the PTA better. It promised the end of Muslims in Sri Lanka should harm come to even a single Sinhalese person. It did so in the most spectacularly provocative manner. Unlike the imaginative High Court in Tissainayagam’s case, a court of law would not be required to speculate on the violence that the Aluthgama speech could unleash. The violence was instantaneous. Yet neither an arrest nor prosecution ensued. A nation watched this speech courtesy of social media. As farcical as it may sound, each one of us who viewed the speech and failed to make a complaint to the police is liable to be arrested for the same offence that the Tamil couple from the early 1990s was cynically convicted of. We remain confidently immune to such an absurdity. Meanwhile, a vocal critic of the hate mongers was found bound, gagged and beaten. Upon being discharged from hospital, he was arrested and charged for making a false complaint against his assailants—ostensibly an offence under Section 208 of the Penal Code.

The Scales

The Law has also been used, under various pretexts, to consolidate power. In the past, the Official Languages Act, introduced under the pretext of empowering the Sinhala-speaking masses, served to advance Sinhala supremacy and resulted in the marginalisation of Tamil-speaking minorities. In future, we may be compelled to endure fresh attempts to curtail religious proselytising under the pretext of safeguarding culture. Such anti-conversion laws aim only to maintain the dominion of one religion over others. In each case, the balancing of interests is skewed in favour of the favoured, as rigged scales easily produce the desired results.

Aluthgama represents yet another instance in which the government will tip the scales in its own favour. Having done little to prevent the rally from escalating into violence—despite repeated prior-warnings—the government will use the incident to justify the continued militarisation of the country. Section 12 of the Public Security Ordinance (PSO) empowers the President to call out the armed forces for a period of one month to maintain law and order if he is of the opinion that the police are inadequate to deal with a situation. Even after the end of the war, the President has issued such proclamations each month without fail.[2] The ineptitude of the police in Aluthgama will certainly serve to justify the continued use of the military throughout the country. Yet continued militarisation has little bearing on those who support the government. Instead, it will be (as it has been) the government’s preferred mode of subjugation. The country is well aware of how the military is routinely used to crush dissent in the North and East.[3] We have also glimpsed this phenomenon in the South during the Weliweriya incident. After Aluthgama, the Law may yet again be manipulated—on this occasion, under the pretext of ‘public security’—to pursue the strategy of consolidating power through the military.

The Blindfolds

When Law is divorced from Justice, the same blindfolds that once represented the impartiality of Justice may be used to blind the citizenry. Sri Lanka has had an illustrious history of censorship and violence against the media. The mainstream media’s reluctance to report on the Aluthgama incident should therefore come as no surprise. In this disappointing context, one only needs to identify the few remaining lines of sight in order to predict where the Law will strike next. Amidst the mainstream media blackout, the public remained privy to events in Aluthgama due to the efforts of a handful of journalists who cleverly harnessed the power of social media. Real-time news flowed freely on Twitter and Facebook, instantly informing sections of the public and generating outrage in many quarters. Without this remarkable phenomenon, the Aluthgama incident may have been just another tragedy without witnesses.

The inconvenience of social media will prompt this government to introduce new laws to curb the free flow of information. Perhaps the preamble of such a law might refer to seemingly noble aims, such as protecting the public from false rumours or preventing panic in the event of a crisis. The government will reserve for itself the right to block social media in the public interest. Before we even contemplate the effects of such a law, blindfolds will be upon us all and we will not even see the next atrocity coming.

Who Serves Whom?

We are often confounded by a fundamental question: does the Law serve us, or do we serve the Law? I suspect the answer depends on who wields power. The Law serves those in power. Everyone else serves the Law. If social liberals had access to power, perhaps the Law would guarantee basic rights and protect those rights from interference. In this context, citizens abide by the Law because of the fundamental belief that it serves their common goals: individual liberty and social justice. Yet if the autocratic and the illiberal wield power, the Law becomes a tool of oppression. The Law restricts rights and curtails freedom. It becomes a means to a singular, deplorable end: the retention of power. In this context, citizens abide by the Law because they fear its consequences.

In Sri Lanka, we must confront the reality of the Law—it serves the powerful, and the powerful have an autocratic and illiberal disposition. Law in their hands is often Law without Justice. Citizens with liberal dispositions must then be vigilant to detect the laws that are most prone to abuse and manipulation. Such laws must be denied legitimacy; and the call for their repeal must be relentless and uncompromising. New laws of similar ilk should be resisted with tenacity and vigour. We must treat the Law with great suspicion so long as it remains this government’s minion. As a sword it will harm us; as scales it will short-change us; and as a blindfold it will hide the truth from us. For the Law is no friend of social progress in Sri Lanka—it is the enemy—until the day it serves Justice again.


[1] This phenomenon has been explored in some detail in ‘The Judicial Mind: Responding to the Protection of Minority Rights’ co-authored by Kishali Pinto-Jayawardena, Dr. Jayantha de Almeida Gunaratne and I. Our inquiry revealed that a hamstrung judiciary routinely convicted or dismissed the petitions of Tamil litigants who had been arrested and detained under the PTA. By contrast, PTA jurisprudence was littered with a host of progressive judgements benefiting Sinhalese litigants.

[2] See Gazette Extraordinary No.1865/24 of 3 June 2014. The latest proclamation is likely to have been issued during the first week of July.

[3] See for example, the military suppression of civilian protests in Navanthurai in August 2011 and Jaffna University student protests in November 2012.

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Latest comments

  • 8
    0

    Gehan
    Thank you for the excellent piece of writing.

    • 1
      0

      Celebrating the erection of a huge wall with a bullet making cracks in it must be taken to the courts citing Tissanayagam’s case through PTA.

    • 0
      0

      Celebration of erecting a huge wall with a huge bullet making cracks in it should be taken to courts as causing social harm quoting Tissainayagam’s case of his words causing violence and disharmony

      http://www.np.gov.lk/index.php?option=com_content&view=article&id=572:war-heroes-commemoration-ceremony-at-kilinochchi-on-13-may-2010

    • 3
      0

      Gehan.

      “Recent events have exposed the comically grotesque nature of the PTA. A speech at a public rally in Aluthgama could not have fit the ambit of Section 2(1)(h) of the PTA better. It promised the end of Muslims in Sri Lanka should harm come to even a single Sinhalese person. It did so in the most spectacularly provocative manner. Unlike the imaginative High Court in Tissainayagam’s case, a court of law would not be required to speculate on the violence that the Aluthgama speech could unleash. The violence was instantaneous. Yet neither an arrest nor prosecution ensued. A nation watched this speech courtesy of social media. As farcical as it may sound, each one of us who viewed the speech and failed to make a complaint to the police is liable to be arrested for the same offence that the Tamil couple from the early 1990s was cynically convicted of. We remain confidently immune to such an absurdity. Meanwhile, a vocal critic of the hate mongers was found bound, gagged and beaten. Upon being discharged from hospital, he was arrested and charged for making a false complaint against his assailants—ostensibly an offence under Section 208 of the Penal Code.”

      Thanks.

      Them the state and the Sinhalese;a Buddhists make up lies after the Fact. The shills are at work to cover up after the news go Global.

      The liars, like Shills Shinali Wagude, and Buddhist organizations in reconstructing the lies, says

      1. The Monk and the driver were travelling is a Three wheeler and the monk was assaulted.

      The facts are that the Monk was travelling in a van, and the driver had an accident or a near accident with the 3 Wheeler owned by the two Muslim Youth. The ban stopped, the driver got down, there was a dispute and an altercation, and the a 3rd Youth joined and beat up he driver. The Monk was not harmed.

      There were no injuries on the monk.

      It was all planned.

      An eyewitness who saw the incident, a Sinhala, was asked to recant his eyewitness information and change it.

      2.) The police and STF participated and assisted the Sinhala Buddhist Terrorists.

      3.) We have JMS’s who lie.

      4.) We have politicians who lies

      5.) We have President who lies, ” His Lying Excellency”.

      6.) We have Minister who lie.

      7.) We have Shills who lie,

      6.) T Para-Sinhalese “Buddhist” liars who are an insult to Buddha and his Buddhism.

    • 0
      0

      Do

    • 0
      0

      Gehan
      The very important reference[1] could have been aided by an activated weblink:
      https://www.colombotelegraph.com/index.php/the-judicial-mind-in-sri-lanka-responding-to-the-protection-of-minority-rights/

    • 0
      0

      ”The case of Ganeshan Nimalaruban, a Tamil prisoner whose death in prison evoked local and international expressions of concern last year was taken up on October 14 before the Supreme Court and the de facto Chief Justice, Mohan Peiris, refused to grant leave to proceed in the fundamental rights case. The de facto CJ refused to observe the normal standards and procedures regarding leave to appeal cases on fundamental rights and the matters that the court should look into before making an order” – SRI LANKA: In Ganeshan Nimalaruban’s case the de facto CJ holds that inquiry into a prison death will encourage prisoners to riot, 15 October 2013, http://www.humanrights.asia/news/ahrc-news/AHRC-STM-186-2013

  • 0
    0

    If Tissainayagam’s words would cause violence, what would the following war monuments cause:

    http://www.defence.lk/new.asp?fname=20091209_06

    http://www.defence.lk/new.asp?fname=20100430_09

    http://www.defence.lk/new.asp?fname=20100506_05

  • 0
    0

    If Tissainayagam’s words are feared to cause mayhem

    what should the following cause?

    http://www.defence.lk/new.asp?fname=20091209_06

    http://www.defence.lk/new.asp?fname=20100430_09

    http://www.defence.lk/new.asp?fname=20100506_05

  • 2
    0

    Gehan, you must have returned after an expensive legal education to SL recently. Your face on the photograph looks so young, clean and innocent.

    What law are you talking about. Law and Reason had fled Sri Lanka over fifty years ago. The genocide of the Tamils in 1958 was gory. No one was prosecuted for this mass killings. They were not even stopped by Bandaranaike until the Governor General intervened to send troops. Then progressive killings took place at the behest of government ministers. Thugs roamed the streets with lists of Tamils, pulling them out of their houses and killing them. This sad story of serial genocides had gone on for so long with its culmination at the end of the civil war. The role of the LTTE exacerbated the events. They engaged in the routine killings of everyone who opposed them. The institutions of the state have been totally dismantled. The “Law” prosecuted no one for these killings.

    Now, if there is a law, it is the one that is laid down by the Rajapoxes. Sri Lanka is a totalitarian state in which there is an absence of a rule of law to justify articles like the one you have written. Your discussion of law as power is appropriate to a democratic system where, of course, the powerful profit from the law. The law is always an instrument of power. But, that analysis is inappropriate in Sri Lanka where law simply does not exist and has not existed in any real sense for many years.

    A pliant judiciary has been installed. Judges comply through fear or through the need for favors. The have the title Justice before their names but they are a disgrace to justice. The chief justices, including Ms Bandaranaike, were appointed to toe the line, Sarath Silva being the most disgraceful amongst them. Academics became Vice Chancellors through plagiarism and pandering to the powerful. Kattadiyas dressed in yellow robes are unleashed to misguide the rural poor in the name of Buddhism. The Muslim, so far servile to the ruling Sinhalese, now are at the butt end of Sinhala extremism with no protection from the law.

    Stop pontificating young man. There simply is no such thing as the law in Sri Lanka. There are the rules of the Rajpoxes to live by. Otherwise the white van will come. Two simple rules.

    • 0
      0

      Ponkoh, please don’t shoot the messenger mate – you are in effect re-articulating just about everything the author states (albeit more subtly), and making it sound like your own invented motherhoods! I used to consider your contributions balanced, but this one is quite skewed and deserves introspective review and then perhaps a gentlemanly retraction.

      Please?

      • 0
        0

        Ben, No need to retract. What is this sycophantic nonsense about being somebody’s son? Does it matter?

  • 0
    0

    A fan of Thomas Jefferson reading media is always suspect.

    The only thing good about the newspaper are its advertisements- TJ

  • 2
    0

    Thank you so much Gehan, this is really great piece of writing for those of your readers who yearn for the return to fairness in the application of the law and for true justice. The true meaning of what you say is so profound, yet you say it such polite yet effective language.

    Are you Godfrey’s son, by any chance?

    • 0
      0

      I was going to ask the same question.

    • 1
      0

      Bend Over

      “Are you Godfrey’s son, by any chance?”

      As long as he is not Dayan, fine.

  • 0
    0

    Gehan looks a tad too young to be Godfrey’ son, no? Unless a grandson, perhaps?

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