31 October, 2020

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We Are Perfectly Entitled To Be Antagonistic Towards Government

By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

So is humiliating or being antagonistic towards the Government the latest excuse that will be used to invoke the Prevention of Terrorism Act (PTA, 1979) against critics?

This question is unfortunately self-explanatory as we entered into the theatre of profound absurdity last week with the PTA detention order arresting dissenting Muslim politician Azath Salley inter alia stating that he had engaged in ‘humiliation of the Government’ and proclaimed ‘antipathetic statements against the Government which lead to public disturbance.’

Facing a collective danger

Granted, the detention order issued under the Presidential stamp also accused Salley of creating ‘religious disharmony among various communities’ which prima facie, is a ground covered by the PTA. But on what precise legal grounds pray, are these references to ‘humiliation of the Government’ and ‘antipathetic statements against the Government’, justified?

Using this same basis, a reporter, a columnist, an editor or a citizen using the media to express extreme frustration with actions of the Government will be as liable as Salley, to being arrested under the PTA. This is in flagrant contradiction of the basics of freedom of expression. And while the Sri Lankan media has been battered and beaten enough in recent decades, the use of the PTA in this manner takes informal censorship in this country to new and dangerous levels. Rather than one politician becoming enmeshed in its toils, this is a collective danger that we are facing, make no mistake about that.

Open deprivations of liberty

True enough, Salley was released on the order of President Rajapaksa on Friday in line with patterns of Presidential (or monarchical) magnanimity that we now witness regularly. Yet, the very fact that a detention order containing parts that were so eminently ridiculous was issued in the first instance remains highly relevant. Perhaps one cannot ask for justifications or for that matter, call for observance of pernickety legal niceties such as issuing a legal detention order from a Government that drags its own Chief Justice before abusive Parliamentarians and then ejects her through military might.

However, it is necessary to raise these questions, not so much that an insufferably arrogant and power-mad administration will take heed but that Sri Lankans will understand the monstrous manner in which their life and liberty rights are being taken away from them. Take heed, these are not deprivations that occur insidiously but in the full frightening glare of daylight.

Perfectly proper to ‘humiliate’ or ‘antagonize’ Government

The PTA is draconian enough in its scope and impact. But it needs to be reiterated that it does not prohibit humiliation of or antipathetic statements issued against the Government. Antipathetic means in effect, showing a strong aversion or repugnance or if its meaning is given in a slightly less aggressive form, being ‘opposed’ or ‘antagonistic to’. And it must be said categorically that being opposed to, antagonizing or indeed, humiliating the Government are perfectly legitimate activities that any Sri Lankan may be engaged in. This is an accepted part of democratic life. Critics cannot be penalized in that regard.

Indeed, as has been stated both by our courts and in comparative jurisdictions, the limits of permissible criticism are wider with regard to the Government than in relation to a private citizen, or even a politician. In fact, the dominant position which the Government occupies in its use of state power compels it to display restraint in resorting to criminal proceedings against its adversaries. However, in the sad twilight of non-law that Sri Lanka occupies now, these salutary injunctions are cast to the winds. The arrest of Azath Salley was meant not to warn only him but also all other critics just as much as JS Tissanaiyagam’s arrest under these same PTA provisions was meant, (not successfully in that instance), to pass that same message.

Why is the PTA invoked against a misquote?

Let us now proceed to the apparently justifiable part of the detention order relating to the arrest of Azath Salley. Section 2 (1) (h) of the PTA prohibits the ‘…commission of acts of violence or religious, racial or communal disharmony or feelings of ill-will or hostility between different communities or racial or religious groups.’

Even so, there are certain qualifications to the utilizing of this provision. First, the PTA should be used only in the most extreme and relevant cases against individuals. In this instance, Salley had been misquoted in an Indian newspaper as stating that the Muslim community will resort to arms against injustice done to them. Reportedly he had requested a correction but the newspaper had been slow in publishing this. His arrest then followed through a detention order on the request of the Defence Secretary. The Presidential revoking of the detention order came a few days thereafter when Salley affirmed that he had been misquoted and stated that he would never support a Muslim call to arms.

In this context, it needs to be asked if a mere newspaper misquote should be a good enough reason for the PTA to be invoked? The severe consequences of the invocation of the PTA at the proverbial drop of a hat cannot be underestimated. Public awareness of these matters is imperative. In this case, the frivolous use of the PTA is well highlighted by the very fact that the Presidential revocation came scarcely with the ink drying on the initial detention order. It would have been a comedy of particularly ribald sorts if not for the fact that a person’s life and liberty was at stake.

Un-equality and lack of restraint shown in the arrest

Second, what about the patent inequality in the application of the law when the Bodu Bala Sena, whose functions are presided over by the Defence Secretary, not only threatens to take to arms in pursuit of its militant Buddhist ideology, (as oxymoronic as it may sound when we hear ‘Buddhist and ‘militant’ linked in one sentence), but does indeed take to arms when it attacks leading Muslim business establishments? Why is the PTA not invoked against them?

Third and most importantly, in terms of the law, the Defence Secretary, when acting under the PTA cannot go on a flight of fancy on his own in arresting people. On the contrary, there are specific safeguards that he has to observe. As the Sri Lankan Supreme Court has cautioned on more than one occasion in relation to arrests under emergency law, vague suspicion on the part of the Defence Secretary in circumstances that show a reckless disregard for the right to personal liberty cannot legally justify an arrest.

Intertwining constitutional safeguards with familiar principles of administrative law, the general principle is that, when requesting for a detention order to be issued, that the Defence Secretary must be satisfied on reasonable grounds capable of supporting his decision that such drastic action is necessary in the circumstances of the case. These grounds are liable to be examined by a court in satisfying itself that the decision was indeed reasonable and to ensure that the Secretary has not misdirected himself on the law in arriving at his decision.

These are, of course, legal questions that a court of law, functioning independently and without dictation by the executive, should examine. And certainly, these questions have been asked time and time again by the Supreme Court during past decades in relation to the arbitrary arrests of politicians to persons suspected of ‘terrorist activity.’ The question however is whether Sri Lanka still draws that level of public confidence that one would expect from its judicial institutions to administer these well established legal precedents and restore confidence in the applicability of the law.

A monumentally unwise action

At an overarching level meanwhile, Salley’s arrest under the PTA should confirm even to the perennially hopeful that, despite this administration’s proud boasts to the contrary at international fora, the emergency regime in Sri Lanka is still potently and perilously alive. The lapsing of Emergency Regulations some years ago has merely been replaced by the PTA. Commonwealth leaders who are eagerly preparing themselves for their forthcoming junket to this country for the Heads of Government meeting should apprise themselves of this fact even as the Commonwealth Secretariat delights in holding workshops on the Rule of Law.

In the final result, as much as the Government would hope to pass a dire warning to critics against ‘humiliating’ or antagonizing it through issuing detention orders of this nature, catapulting a politician not particularly known for taking principled positions into the spotlight through an unwise arrest (and revocation of such arrest) under the PTA can only be monumentally unwise. We will surely see this in time.

 

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    Sorry, the Newspapaer misquoted me on my “intentions” .

    Can the Muslim Leaders who are domiciled in Ms Pintos beloved Western Nations like the UK and US, use the same excuse to dodge their draconian Homeland Security Laws?.

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      prey tell me if you know of any draconian laws you speak of.if you can check a recent us supreme court judgement regarding the burial of soldiers killed in action you will know what fair play is.

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      It is sad that you do not really know how the Homeland Security Laws work. No one is roped in under HSL for exercising their democratic right to protest. If you think that its happening in UK and US then you are displaying your ignorance. Further you are displaying your ignorance by not understanding what is the ground situation in Sri Lanka. The regime, rightly so eliminated LTTE, but today the same regime is using more draconian actions to suppress any opposition from the Sinhala, Tamil and Muslim civilians. You are brain washed by the Rajapakse controlled media. Sri Lanka is one of the highly literate countries in the world, but the masses in SL behave like uneducated, illiterate, gullible, and stupid people. What a sad state of affairs! Open your eyes and see whats happening around you. Try to understand what is the benefit of enjoying true democratic rights, rule of law and freedom of speech!

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      Sumane,

      Don’t you read newspapers? Try googling for Ron Paul on youtube. Or tune to RT. Do you consider dailynews as some sort of a text book on world affairs?

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      KAS, This is about Sri Lanka and not any other. Argue the subject please.

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    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy
    https://www.colombotelegraph.com/index.php/comments-policy-2/

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    Homeland Security regulations are applied with much more care and courtesy and is not comparable to a Gota-affi signing papers – the
    standard applicable to Leela/Sumane etc.
    A quote or even a mis-quote, in a public Newspaper, has its democratic due process or course to undergo before being hauled via a DO from the
    MOD. It should not surprise Trade Union Leaders that some DO will be
    signed and ready for use from 22nd May next, with Army back-up!!

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    Sumanasekera – Kohede Yanne, Malley Pol

    Have you now run short of ideas that you
    have turned personal? What a pity!!

    At this rate, any newspaper can even send
    you to Police custody under the PTA. All
    they have to do is report something you
    did not say. Hey presto!! The intelligence
    sleuths will forward a highly classified
    report and the order will come to arrest.

    Is it not right to first check the veracity
    of a report. In this case, is it not correct
    to check whether the Junior Viketan account
    was accurate. After all, they have now apologised
    and said they misquoted Sally.

    How many TNA members travel abroad and make
    speeches. Nothing has happened.

    It is not western nations or eastern nations
    Sumaney. Think before you say stupid things. Dont
    kill the messenger.

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    Even in the US there is now a hue and cry against Guantanamo and the holding of captives in detention without charges. Today I watched the program of Christanne Amanpour on CNN where an army lawyer is able to challenge the army itself for holding detainees without charges. The difference between Sri Lanka and Western Democracies is that people are free to express their views without any fear or coercion as well as the rule of law, where any person can challenge the Govt or President in the courts.

    AMANPOUR: Welcome back to the special weekend edition of our program. As we’ve been reporting, the hunger strike by more than 100 detainees has focused the world’s attention again on the legal black hole that is the Guantanamo Bay prison camp in Cuba.

    President Obama has certainly taken notice in a recent press conference. He reaffirmed his commitment to close Guantanamo. And he challenged Congress to step up and help get it done.

    But critics charge that there are things the president could do today to change the situation. Meanwhile, the vast majority of the 166 detainees would rather starve than spend another day in limbo.

    One of them is an Afghan man, now in his early 30s, known only as Obadullah. Obadullah’s only daughter was born just two days before he was taken into custody. She’ll be 11 this summer, and cries for her father, that she has never seen.

    In March, Obadullah wrote a detailed account of his hunger strike, which was just recently declassified by the Department of Justice. He writes, quote, “I’m losing all hope because I’ve been imprisoned at Guantanamo for almost 11 years now, and still do not know my fate.”

    So Capt. Jason Wright is a U.S. Army officer whose job is to defend detainees in military tribunals. He represents Obadullah, who’s the lowest on Guantanamo’s legal totem pole. And he also represents the highest value detainee, the 9/11 mastermind, Khalid Sheikh Mohammed. And Capt. Wright joined me from Washington.

    (BEGIN VIDEO CLIP)

    AMANPOUR: Captain, thank you for joining me.

    CAPT. JASON WRIGHT, U.S. ARMY, ATTORNEY: Thank you for this opportunity.

    AMANPOUR: I think there is no doubt about the guilt of Khalid Sheikh Mohammed, and he will eventually one day maybe see his day in court.

    But let me ask you about Obadullah. We have just delivered his case on camera. Is he charged with anything? Is he deemed by the legal system to be guilty of anything right now?

    WRIGHT: He has not been charged, at least as of today, by the U.S. government. And we’ve been informed that there are no plans to bring charges against him for the, quote, “foreseeable future.” Right now, he’s facing the prospect of indefinite detention.

    AMANPOUR: I mean, you know, it really boggles my mind, even though I’ve been reporting this for a long time. I want you to walk me through how he even managed to end up in Guantanamo in the first place.

    WRIGHT: Yes, in 2002, in Afghanistan, in the province of Khost, Afghanistan — Obadullah was living with his family. And during the nighttime hours, U.S. forces raided his home, based on a single source intelligence report that there were mines in the area and that he may have been part of some sort of bomb cell.

    At that point, he was taken into custody by U.S. forces and transferred to various places within Afghanistan and then eventually sent to Guantanamo Bay in October of 2002. He is — there’s no allegation that he has ever attacked anyone, ever harmed anyone.

    Instead, the U.S. government contends that there are approximately 20 land mines located near his family’s compound across the street, and they’ve attributed those land mines to him. And secondly, they claim that he had a notebook on him that had some sort of rudimentary diagrams of land mines.

    AMANPOUR: So what can you tell me about that stuff? Because from what I read and from the statements that have come out, some of that military equipment was left over from the Soviet time, predated 9/11, what was found by his compound.

    WRIGHT: That’s right. Obadullah needs a day in court.

    We recently had a defense investigation with a very senior level investigator to Afghanistan and it covered a great deal of exculpatory information or otherwise information that exonerates him about the nature of the land mines, the fact that they were Soviet grade; they were very likely left during the period of the Soviet occupation and also it calls into question a lot of the single source intelligence against him.

    But this young man has now been detained indefinitely for 11 years and cannot even get a day in court to plead his case.

    AMANPOUR: So you say he can’t get a day in court. But from also what I know and what you’ve told — what you’ve reported is that the U.S. government or the system has dropped the charges against him anyway two years ago.

    WRIGHT: Exactly. And the only charges that the administration could potentially bring would be those of what’s called material support to terrorism and also conspiracy.

    And recently, the D.C. Circuit Court of Appeals has struck down those two alleged war crimes as a matter of law, saying that it was a violation of the ex post facto clause, essentially to have these two crimes as part of the Military Commissions Act.

    So he very much is stuck in this legal limbo, a man that we believe is fully innocent of any wrongdoing. And, again, he was never been — never claimed to have hurt or harmed any Americans or any Afghans or anyone, for that matter.

    AMANPOUR: And who was basically taken in because an informant tipped off the authorities and who knows why, maybe for money or whatever.

    WRIGHT: Correct.

    AMANPOUR: What can the system do for Obadullah right now? Because President Obama does have the executive authority to be able to transfer people like him. Why is he not doing that?

    WRIGHT: I was encouraged to hear President Obama last week, ask the American people why are we doing this? And you’re right. I think the next question is what can we do about it.

    And when it comes to Obadullah, an Afghan villager, and the other 16 Afghans, I think President Obama can work with President Karzai to come up with a good solution to send these men home. That’s fully within his power, I believe, to do that, to work with the government, the legitimate government of Afghanistan, to send their citizens home.

    The same can be said of the other 86 detainees who have been cleared for release, who are innocent, who have done nothing wrong in terms of the American government, who can also be sent back to their home countries or otherwise repatriated. That’s within the president’s administrative authority.

    AMANPOUR: And what is Obadullah’s condition right now, because he is one of the more than 100 on strike, on hunger strike.

    WRIGHT: That’s right. I have seen him several times since the strike began, and his condition continues to worsen. I’m very troubled with the loss of his weight, the degree of hopelessness that is pervasive at the camp.

    The administration has responded to the hunger strike by actually increasing the severity of the conditions of confinement by reducing the temperature in the cells, by taking away communal living, by according to recent accounts from Obadullah, by denying him the opportunity to use soap and a toothbrush and restricting his access to the outdoors to one or two hours a day and modulating that such that sometimes he’s only permitted to go out at 1:00 am or 3:00 am.

    And so it’s just — it’s really disturbing that these men are suffering in such a way.

    Yet the response to this has actually been to worsen their conditions of confinement.

    AMANPOUR: And Captain, honestly, I am struck — there you are, sitting before me in full military regalia, medals and ribbons, and you are talking to me about your own military, the military in Guantanamo is doing to these people what you’re now complaining against and trying to get them released from.

    How do you even go to work every day? It’s you against your country’s system.

    WRIGHT: Well, they’re — I’m essentially the military’s version of a court-appointed lawyer and our job is to zealously defend anyone that we represent. Obadullah is innocent until proven guilty, much like all the men in Guantanamo Bay. It’s important for the rule of law to make sure that there is effective assistance and counsel.

    And that’s really what we’re doing here, as defense attorneys, as habeas counsels. It’s making sure that the principles of democracy mean something, that the rule of law means something in America. And it is an honor to work in this capacity and to make sure that the principles that our country hold so dear are being fulfilled each and every day.

    AMANPOUR: Well, you’re giving it a good college try.

    And very finally, one word: do you believe that he will be released any time soon?

    WRIGHT: I hope for Obadullah’s sake and for the sake of the other detainees involved in the political protest, I hope that there — someone will be released soon.

    I think that would be an important step for the Obama administration to signify to the detainees and to the world that Guantanamo Bay must be closed for these men who have — who are innocent and who have — who need to go home to see their families. So, yes, I hope so and we look forward to hearing more from the president and working with him as he continues to develop his plan.

    AMANPOUR: Captain Wright, thank you for joining me.

    WRIGHT: Thank you.

    Can you even imagine this type of dialogue in Sri Lanka where even the CJ was impeached on false charges???

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      Thank you for this transcript. I couldn’t but reflect on the injustice perpetrated on CJ Shirani Bandaranayake and the manner in which our parliamentarians insulted her particularly Rajitha Senaratne. I cannot help but think that we may never shed our shallowness for generations to come.

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    I do not think that ordinary citizens of Sri Lanka will take the writer’s advise and behave in the manner advocated. They know their place in society, and will only do and act according to what will not compromise their safety, employment, their children’s future and social standing. Singaporeans are a good example of this, although their country is now the world’s richest in terms of per capita income, equitably distributed into the community at large.

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    Thank you Kishali for giving voice to our opinion. I would like you to give your view, in your future writing, to the following:

    1.The Law on Self Defence. Can we protect ourselves against marauding law enforcement officers?

    2.What is the legal recourse to illegal arrest? Can legal action be taken against arresting officers?

    3.Can legal action be taken against the Police for failure to carry out their duty? Eg. Failure to arrest an offender.

    4. Can a judicial order be discussed in the public domain on its legal merits/demerits without fear of contempt charges?

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    Kishali, An additional point no:5 – Can action be instituted against the Attorney General for a) frivolous arrest and detention, and b) failure to institute action when there is a prima facie case?

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