By

C.A.Chandraprema

The remanding of Tissa Attanayake for nearly six weeks has sent shock waves through both sides of the political divide. Attanayake was the general secretary of the UNP during what was probably the worst period in its history. All of us journalists know him as a friendly and approachable politician. It was through Attanayake and his secretary that all the Sunday political columnists got their ‘gossip’ about the UNP. This was not leaked information.

Every political party officially gives out the gossip relating to their organisation every week to the Sunday columnists and it was Attanayake who ran this operation for the UNP for many years. He left the UNP on the eve of the last presidential election sounding the warning that fielding a common candidate from outside the UNP would result in UNP members being subject to gross injustice. In the two years that has lapsed up to now his words have been proved right time and again and he has many sympathisers within the UNP who are appalled at the treatment meted out to the man who had shouldered party responsibilities during a difficult period.

What is incomprehensible is the fact that he has been remanded for one and a half months in one go. Even if a person is produced in courts over a murder charge, he is remanded for two weeks which is extended as required. But how was Attanayake remanded over a forgery charge for six weeks in one go – ie. until the next hearing of the case? The CID came into focus because of the manner in which they charged the suspects in the Ekneligoda case. One Magistrate before whom one of these suspects was produced said in open court that his hands are bound because of the laws under which the suspect is being produced before him and that according to the law he has to remand the suspect but that in his view the fundamental rights of the suspect has been violated by the actions of the CID.

The remanding of Tissa Attanayake for one and a half months is a case in point. Attanayake was supposed to have been indicted for forging what was purported to be an agreement between the TNA, the UNP and the common candidate at the last presidential election. He has been charged under the Penal Code, the Presidential Elections Act and what is known as the ICCPR Act No: 56 of 2007. Surprisingly, this extended period in remand for Attanayake was not brought about because of the provisions of the Criminal Procedure Code but the the ICCPR Act. The International Covenant on Civil and Political Rights is supposed to guarantee the rights of citizens in a manner superior to the local law. But now the ICCPR Act too is being used as an instrument of repression by the government. The relevant Sections of the ICCPR Act are 3(1) and 3(4) which are as follows:

3(1) No person shall propagate war or advocate national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.

3(4) An offence under this section shall be cognizable and non-bailable, and no person suspected or accused of such an offence shall be enlarged on bail, except by the High Court in exceptional circumstances.

By what stretch of the imagination are we to say that Tissa Attanayake’s supposedly forged document propagated war or advocated racial or religious hatred? Both locally and internationally one comes across many instances where laws meant for a certain purpose are used for other purposes in such a manner that it defeats the original purpose of that law. Sections 3(1) and 3(4) of the ICCPR Act are obviously meant to deal with serious depredations committed by individuals and organizations such as the Bodu Bala Sena and particularly operatives like Gnanasara. Even the Eluga Tamil movement of C.V.Wigneswaran would not yet qualify to come under these sections of the ICCPR Act. Before applying the law, what has to applied first is commonsense. But that seems to be too much to ask of a government that seems to have taken leave of its senses. Judges are bound by the laws that are invoked before them by the prosecution. The prosecutions are handled by the executive arm of the state. The discretion of the judge can be used only during the hearing of the case. Unless the judiciary acts judiciously despite the dementia affecting the executive, all is lost.

Courtesy: Sunday Island