Sri Lanka must be the first country in the world where the International Covenant on Civil and Political Rights (ICCPR) Act, No 56 of 2007 is being used as the main legal tool by state agents to terrify those who speak out against them


Kishali Pinto Jayawardene

Has the law been forgotten to such an extent in Sri Lanka that individuals who happen to antagonise the politically (or militarily) powerful are being summoned to the Criminal Investigation Department (CID) on the basis that they have offended repealed laws? Does no one know what laws are in force in the country and what have been repealed? What is this colossal joke that is being inflicted upon us?

What constitutional promises when basic norms are disregarded?
In the absence of infantile foundational knowledge on the laws which may be invoked to allege that a violation has occurred, is it not a veritably Alice-in-Wonderland dream to dwell on constitutional reforms or promise the nation, a new Constitution in the coming year? When the basic criminal law and criminal procedure been subverted to such an extent that notional obedience or a semblance of propriety ceases to be demonstrated by those tasked with implementing the law, where is one to turn to? We live in the shadow of the 20th Amendment to the Constitution which effectively subordinates all institutions and branches of state to the Office of the Presidency.

Consequently, is it not a farce of the highest order to talk of a constitutional balance of power between the executive, legislature and the judiciary? And for that matter, what is the point of learned perambulation on a Rights Bill to be put before the people? For these discussions to be taken seriously, the reversal of the 20th Amendment is imperative in that sense and sobriety must return to the constitutional discourse. That must trickle down to the working of the governance process rather than this madhouse of the absence of law and order that we see.

These are pertinent questions that arise given the increasing pattern of the criminal investigation process being used to harass complainants. The targets of these attacks range from men of the cloth who raise legitimate grievances regarding the inaction of the State over the 2019 Easter Sunday jihadist attacks to former state officers and journalists exposing massive frauds in state agencies as well as activists protesting against abuse of minority communities and trade unionists demonstrating against state corruption. One by one, these complainants are cast in the garb of victims, forced to undergo multiple humiliations at the hands of law enforcement officers.

The ‘murder’ of the legal system

While activists may be used to such harsh treatment, the aplomb with which men of religion and public servants are being harassed by state agents is unprecedented. Is this what the 20th Amendment has bequeathed to us? There is a tinge of palpable irony to the whole, one must admit. Some of these complainants are the very people who ushered in the 20th Amendment with hosannas. On the one hand, the former head of the Consumer Affairs Authority, once a leading believer in the ‘change’ of 2019-2020 and who then resigned, disillusioned over massive racketeering allegedly at the hands of Ministers charged with trade and commerce is being summoned to the Murder Investigation Unit of the CID.

The legal basis of such ‘summons’ is hard to discern. Who does the CID think, is being murdered? In actual fact, it is Sri Lanka’s criminal justice system that is being decapitated wholesale by these antics. Does the CID implictly recognise that fact? Is that unwitting recognition the same when Ministers wring their hands and call upon the CID to carry out ‘impartial investigations’ into the thievery of garlic and sugar and allegations over fat commissions in bringing fertiliser, nano urea or otherwise as the case may be, to our furious farmers. Is it that the CID is not capable of carrying out impartial investigations and must be explicitly called upon to dos?

Meanwhile an interesting feature of this tactic are Ministers, their minions and policemen who say that they have been ‘criminally defamed’ despite provisions relating to criminal defamation in the country’s statute books being repealed decades ago. This clear strategy of intimidation has seemingly not worked with its targets. One prominent Catholic priest had to undergo the ignominy of repeatedly presently himself at the offices of the CID on a complaint by a senior state intelligence officer (initially on the basis that he had been criminally defamed) by remarks made by the good priest during an online discussion on the 2019 Islamist attacks.

Being the ‘first’ in the world for all the wrong reasons

Purportedly, the reason for summoning him was to clarify the context of his statements. But the fact that his observations had been based on the reports of the Presidential Commissions of Inquiry which had sat to examine the 2019 attacks and were matters of public record, was apparently of no significence to zealous law enforcement officers questioning him. Later, the allegations were changed to accusations that he had offended the Penal Code. Further, in a continuation of the absurd purposes for which this law has been used, that he had infringed the International Covenant on Civil and Political Rights (ICCPR) Act, No 56 of 2007.

In other words, Sri Lanka must be the first country in the world which uses the ICCPR Act, modeled on an international convention which is the historic touchstone for the protection of civil liberties, to bring about exactly the opposite result. The ICCPR Act has become the main legal tool with which state agents seek to terrify those who speak out against them.

There is an obvious paradox here that reflects with strong negative force on the integrity of our domestic systems of justice. Ministers who wax eloquent on the historic value of the Sri Lankan judicial institution in Parliament and promise the due working of the legal system must therefore bite their own tongues post haste.

They must ask themselves as to who exactly believes their assurances, domestically or globally, when the evidence is so clearly to the contrary? That said, the reversal of the 20th Amendment is only half the battle won. The tale of our many Amendments, seesawing between full power being given to the Office of the Presidency and uneasy constitutional controls being imposed on abuse of executive power tell us certain home truths. Changing a constitutional text by itself, means little if the Constitution itself is not important to the people, if it is not made something that is real to their lives and if it is used purely as a tool of political engineering.

The evil that our Constitutions do

That is what our Constitutions have been, from 1972 to 1978 with all their manifest evils and without exception, famously ‘autochthonous’ or home grown boasts notwithstanding. The centralizing of power in the political authority, regardless of whether this was the Parliament or the Presidency continued as the great ambitions of little men. The Bard’s reminder that the ‘evil that men do lives after them, the good is often interred with their bones.’ Well, Sri Lanka’s Constitutions have certainly had their ‘evils’ live after them, in perfect tribute to the men who brought about that result.
Sri Lanka’s unfortunate citizenry is living proof of that.

Couresy:Sunday Times