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.