By Basil Fernando –
Treating participants in demonstrations as terrorists will further damage the legal system of Sri Lanka.
A student leader Wasantha Mudalige and several other leaders who have participated in demonstrations to highlight issues such as the problems of university students and other problems about economic difficulties in the country have been arrested and the charges are formed in a way so as to enable their detentions under the Anti-Terrorism Act. On that basis, the Judiciary’s power to examine the legality of their arrest and detention will be removed for the period for which the detention order is valid.
A detention order can be for three months and will come into effect through the signature of the Secretary to the Ministry of Defense. Thus, this detention will be entirely an Executive order and the Executive branch will completely determine the issue of the liberty of these individuals.
Such an act of deprivation of judicial intervention into the arrest and detention of persons takes away the rights guaranteed by the Sri Lankan Constitution, other Sri Lankan laws and also international laws and treaties that Sri Lanka is a signatory to.
Whether an act could be characterized as a terrorist act is not a privilege of the Executive. There are internationally accepted definitions in defining the parameters of what may be called terrorist activities. Particularly, during the last few decades, this issue has been thoroughly debated in the world and the United Nations itself intervened in laying strict limits to the characterization of acts as acts of terrorism. The organizing of or participating in peaceful demonstrations is not by any means an act of terrorism. The attempt to extend the definition of terrorism to peaceful assemblies and demonstrations will fundamentally violate all the protections that are being afforded to such activities. The extension of the meaning of terrorism into these activities will be a primary and fundamental attack on the manner in which crimes are understood in Sri Lanka. The criminalizing of acts and particularly bringing them under the worst forms of crimes of terrorism will not only affect the particular individuals who have been subjected to such detention orders but will affect the entirety of the criminal justice system in Sri Lanka, the Constitutional law of Sri Lanka and the legal system in general. It will also violate all the principles on which liberal democratic constitutionalism is based.
This is happening at the same time when the country is seriously discussing the future of its economy at all forums such as within the central committees of political parties, among the political parties, in the area of commerce, trade and others, and also in relation to international relationships which have become very vital to the survival itself of the Sri Lankan economy and its people. The extension of the definition of terrorism to normal democratic activities will affect all these discussions and will push back any progress that has been made in the attempt to arrive at a consensus about how to resolve the extremely serious problems that are faced in the country. At such a time, creating an atmosphere of tolerance is essential to consensus building because the drastic economic changes that are needed require a high degree of consensus if they are to be put into effect at all. Instead of creating such an atmosphere of discourse and debate, attempts to silence the people by making democratic participation to appear as acts of terrorism will damage this all necessary discourse.
There had been many suggestions about future measures that need to be taken in order to achieve a serious change to meet the development needs of the Sri Lankan economy. The Samagi Jana Balawegaya (SJB), for example, has presented to the Parliament itself, through one of his leading members, a 10 point programme which it has proposed to be taken with the consensus of all parties in order to achieve a rapid solution to the situation of economic bankruptcy. All such measures which are required will necessitate intense debates as to the possible changes that may be brought about through these measures which may contribute to a significantly better future for Sri Lanka. However, by their very nature, all suggestions are of a controversial nature and therefore, it is only informed debates and discussions that will create the environment that is needed in order to have similar suggestions accepted by the people. Such acceptance is a precondition for the successful implementation. Thus, politically speaking, any attempt to stifle discussion and debate including measures that are taken to suppress demonstrations is counterproductive to economic development. The priority at the moment should be this drive towards an economic solution and not mere petty considerations of the protection for some individuals who may not enjoy public confidence. In fact, the major obstacles to economic development are the fact that on a very large scale, there has been a loss of confidence of the people in their system of governance.
Of the 10 points suggested by the SJB, it is the last point which is mentioned that is creating transparency and anti-corruption that will be the most attractive proposal and also the most necessary proposal if economic progress is to be achieved. This is an issue that interests the entire population and any progress made in this area may contribute a great deal to finding solutions to the kinds of problems that the protestors, through their various demonstrations and other means, have been raising in the country for a considerable period of time. In fact, these active elements among the students as well as trade unions and other peoples’ organizations should be given a prominent place to participate in this debate to bring about the said consensus because the implementation of any of these proposed measures will very much depend on the manner in which these people and their organizations will react to such demands. If the people who make such demands are treated as terrorists, it will only contribute to the colonization of forces which in turn will increase the possibilities of confrontations and which will in turn also damage the prospect of finding a solution to pressing economic problems.