Kishali Pinto Jayawardene
Notwithstanding those ‘nava gilunath baan choon’ (lets make merry while the Titanic sinks) citizens obsessed with Sri Lanka being ‘thrashed’ by Australia in the Test series opener played in Galle, as the New Zealand Herald rather impolitely put it this Friday, there was a different and far more serious development happening alongside.
A sinister state agenda
This was when the police and the army, on orders from above prevented and in some cases, forcibly removed lawyers and citizens asking the President to ‘Go’ from the ramparts of the Galle Fort. Ostensibly this was to remove ‘distractions’ diverting the concentration of the players. That was, of course, a convenient excuse for a far more sinister state agenda, to prevent the right to peaceful protest.
Days later, lawyers of the Galle Bar filed a rights challenge at the Supreme Court alleging the infringement of their freedoms of speech, expression and right to movement (Articles 14 (1) (a) and (h)).
Amusingly enough, we seem to be now in the habit of piously quoting decisions of the late Justice MDH Fernando who retired prematurely from the Bench of the Supreme Court more than seventeen years ago.
Apropos the importance of the Jana Ghosha principle regarding the right to peaceful protest (Amaratunga v Sirimal and Others, 1993) which is fundamentally central to preventing state abuses.
That aside, this is also to point to an equally important judicial precedent in regard to safeguarding the right to movement (Thavaneethan v Commissioner of Elections and others,2003).
This was a case during the 2001 General Elections challenging the barring of 55,000 voters of the Batticaloa District and the Vanni District to travel from ‘uncleared areas’ to cast their vote at polling stations in ‘cleared areas’ (under the control of the Army) at the height of the Vanni war.
Contrastingly, voters from ‘uncleared areas’ of the Trincomalee District had been allowed to pass without restrictions, being supporters of ruling party politicians.
Arbitrary restrictions preventing movement are ‘illegal’
Examining the two factual situations, the Bench (Fernando J, Ismail J and Wigneswaran J) ruled that barring the Batticaloa voters from voting for the candidates of their choice (possibly an anti-Government vote as the case may be), was mala fide and unconstitutional. There was no evidence being established on grounds of public peace or national security. The versions of the Respondents justifying their actions in preventing the affected voters from proceeding to the ballot stations were ‘riddled’ with inaccuracies.
Their actions were held to violate interalia, the rights to equality, freedom of expression including the right to vote and the right to movement. Those rights could only be restricted by ‘law’ including emergency regulations under the Public Security Ordinance (PSO) but not by the arbitrary will of state agents or by Presidential ‘regulations’ under the Prevention of Terrorism Act (PTA) that is not subjected to periodic checks by Parliament.
While the factual context of that case may be different to rights dilemmas faced by protestors today, the principle is the same. What is the relevant ‘law’ in Sri Lanka prohibiting the right to peaceful protest? How would the police and the army have responded if citizens and lawyers had held placards on the ramparts of the Galle Fort saying, ‘We support Gota’ instead of the contrary? Would they have been so quick to hustle them away? I think not. State Agents and their handlers at high state positions who direct the crackdowns on peaceful protests must be reminded of the Jana Ghosha and Thavaneethan precedents.
The implosion of a nation-state is gradual
There is a cost that comes with obeying ‘illegal orders.’ Such precedents are of extraordinary value during these conflicted times.
Thavaneethan was among some of the last rulings handed down by ‘five star Benches’ of a Court still in the lustre of its heyday of rights protections in holding the State to account. Not long thereafter, that lustre was dimmed as the Court itself and the Office of the Chief Justice was cast into distasteful political controversies under the Kumaratunga Presidency. The Bar (at the time) as well as legal academia who now rail against the collapse of the Rule of Law, remained largely silent as these controversies irrevocably tarnished public perceptions of justice.
This was in obedience to political interests and/or self interest as the case may be. It is vital to remember these as they serve as fitting examples of the continuous degradation of our systems of governance. The legal, economic and social implosion of a nation-state once hailed as the most promising in South Asia does not come about suddenly.
The profound crisis today, of being ‘on the verge of a fragile state’ as one financial expert put it recently to CNBC, the global financial news agency, did not happen in the ‘twinkling of an eye’ so to speak. Neither were the ravages by the Rajapaksas, though substantial, the sole reason.
Instead, this collapse has been gradual. And the silence of professionals and academics during the time when systems were still capable of being saved, even as tricksters prospered and advanced their agendas was core to that deterioration. That, by itself, is quite a different problem from the chicanery of politicians. But both have contributed in no small measure to the ruin of this country today. Recognizing that truth, as well as the politicisation of what is termed as ‘civil society’ is essential.
Not a ‘fragile state’ but a ‘failed state’
In that context, the activism of the Galle Bar as its members were prevented in peacefully protesting takes on a singular importance of its own. Of similar value is this week’s protests by Colombo’s lawyers when they marched towards the Presidential Secretariat, also to be stopped by the police.
To be clear, we are not ‘on the verge’ of becoming a fragile state but a ‘failed state.’ All those who participated in breaking the spine of Sri Lanka’s judicial system must congratulate themselves on the excellent performance of their task.
These silly amendments (22A) presented by the Government will not suffice. Its trickeries and the presentation of the 20th Amendment in another slightly cleansed form will not fool anyone.
President Gotabaya Rajapaksa clinging onto his position will not work either. None of the Presidential steps taken since May 9th 2022 have indicated a course correction. His Prime Minister performed the task allocated to him of reassuring the Colombo based middle classes whose participation in the Galle Face protests twindled to a trickle thereafter.
Concretely, no great change took place in the status quo with Rajapaksa rogues and their corporate robbers who enabled this collapse to occur, returning quietly to their positions. The one thing that the Gotabhaya Rajapaksa protege, the newly appointed Minister of Investment Promotion, one of Sri Lanka’s unimpressive parvenu nouveau riche, has excelled at is securing the easy issuance of passports for Sri Lankans to get out of the country as soon as possible. For that, he must be applauded.
However, ‘fleeing the Sinhala-Buddhist homeland’ is scarcely the vision of ‘prosperity and splendour’ that his political patron promised.
Simply put, major funders will not assist due to the risk of their funds being gobbled up by corrupt political leadership.
What Sri Lanka needs is first, an interim multi-party Government with buy-in from the Opposition indicating some guarantee of system change, including the departure of the President.
Secondly, we have to witness effective constitutional changes rectifying the balance of power between the organs of State. To argue that elections are not ‘affordable’ or that, to test the public will can result in a ‘subverted’ outcome is only to perpetuate this nightmare.
It is a Catch-22 situation. We have to break free. Or perish in the process.