Kishali Pinto Jayawardene
When Sri Lanka’s acting Inspector General of Police (IGP) instructed all police officers to ‘take legal action against those who publish posts on social media criticising government officials and obstructing their duties’ as reported on 1st April 2020, one might have been forgiven for speculating that this was grim humor befitting the day of all fools in question.
Losing our liberties along with covid-19?
But that fleeting impression was soon dispelled with. It appeared that the police was deadly serious. And so, in midst of the unprecedented covid-19 health emergency gripping the nation, it seems as if we are fairly and squarely on the path of losing our liberties as well, in the process. Of course, this advice by the acting IGP flies in the face of established judicial precedents for the past three decades or more. Even at the worst of conflict which plagued this country, such casual and vague directions ‘not to criticise’ were abstained from by state officers.
There was good reason for doing so. As the Supreme Court has warned umpteen times, ‘ Freedom of speech and expression includes the right to fairly and within reasonable limits criticise a Government. This has been widely recognised in civilized jurisdictions as a natural right inherent in the status of a free citizen. The people have a right to be informed of public issues through sources outside and independent of the Government’ (Mohottige and others v Gunatilleke and others, 1992).
The Court, in this case, as well as several others which are immediately familiar to constitutional law practitioners, however cautioned that this freedom ‘can be restrained where its exercise is intended to or has a tendency to undermine the security of the state or public order, or incite feelings of disaffection or ill will against the State or bring the Government into hatred or ridicule, etc.’ Put in another way, as was observed in the popularly known Jana Ghosha case (1993), “the right to support or to criticize Governments and political parties, policies and programmes is fundamental to the democratic way of life, and…cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions.”
Contrary to the Penal Code
Indeed and apart from the Constitution, the advice of the acting IGP is contrary to the provisions of the very Penal Code which the police swear that it is acting by. Even though there are provisions that criminalise causing disaffection or obstructing a police officer in the performance of his or her duty, this is a very different scenario to mere ‘criticism’ as the case may be.
The Penal Code itself makes that point very clearly. For example, Section 120 which sets out the offence of causing disaffection (discontent), specifically explains that ‘it is not an offence under this section… (to show) that the President or the Government of the Republic have been misled or mistaken in measures, or to point out errors or defects in the Government or any part of it…’
So a colonial era statute had the sense to make this distinction between ‘criticism’ and ‘disaffection’ clear, which lesson appears to be lost on modern day law enforcement officers? The distinction therein has a difference that forms the bedrock of the Rule of Law, make no mistake. And proceeding on this path of constructive criticism, why pray, are Sri Lankan people treated like mindless cattle even as politicians and senior public officials wag their fingers admonishingly, advising ‘discipline and order’ to get over the ongoing covid-19 crisis? Who lacked ‘discipline and order’?
Was it wise to only quarantine travellers from a few countries as late as March 15th when entering the country in a background where a child could see that a traveler from Dubai could have easily carried the virus (as indeed, he did) as a traveller from South Korea or any of the other countries named in that directive? And how was it that some ‘privileged’ people were able to ‘home quarantine’ while others had to be lugged to quarantine centres?
Preserving ‘normalcy’ at the cost of lives
The defensive statement released recently by the Airport and Aviation Services Ltd in response to a growing public critique only serves to butress the fact that more cautious steps should have been taken by the authorities far earlier. Who is responsible for this?
Was it not a fact that laxity was allowed to prevail for a crucial period of time because the Government and its merry men and women were more interested in preserving a veneer of normalcy in order to persist with their aim of holding parliamentary polls until it became quite impossible to do so?
Then, let us to go to the alleged lack of ‘discipline and order’ as people scrambled to get food supplies and essential medicines during the few hours that curfew was lifted in various districts during past weeks. While a certain amount of confusion may have been expected during the first week and state entities given some leeway in that regard, it goes without saying that two or three weeks into Sri Lanka’s lockdown, the so-called ‘efficiency’ of Government panjandrums handling these services must be demonstrated. Yet, is this the case?
While delivery of essential groceries and food items improved to several areas in curfew-hit districts classified as ‘high risk’ in the Colombo District though problems prevailed elsewhere, the very opposite was true of medical supplies. This week as well, lines of desperate people were evidenced outside pharmacies in the baking hot sun, only to be abused by employees of the state Osu Sala in some instances. Stories of the difficulties that ordinary citizens are going through categorically belied ‘sunshine stories’ peddled over state and private media.
Are government ‘technocrats’ living in a parallel universe?
To cap it all, we had the recently appointed head of the state pharmaceutical corporation pontificating on national television that any citizen can ‘whatsapp’ the prescription to a pharmacy and get the medicine. To the question as to what option can be exercised by thousands of Sri Lankans who have no smartphones to do so, the smart-alec answer was that, ‘well, their children would be having these phones, surely?’
Are these viyath maga ‘technocrats’ advising the ‘technocratic’ Presidency of Gotabhaya Rajapaksa living in a parallel universe? Funnily enough, these claims recall similar idiocies by the ‘yahapalanaya’ Minister of Agriculture who once advised farmers to get their fertiliser allocations through applications sent on smartphones. But to a father frantic to get medicine for her child or a son seeking urgent medication for his ailing mother, this is no joke.
Over all, the importance of free and fair discussion on matters of life and death, quite literally in Sri Lanka during this time of the covid-19 pandemic, must not be lost sight of. Abandoning this right, it is crystal clear, leaves us open to a narrative that is dominated by the Government and its state organs. This would be dangerous at any time but doubly so when the citizenry is paralysed by fear as it is now.
Thus, the lamentably ill advised ‘advise’ by the acting IGP must be opposed and resisted. It must be officially withdrawn.