Kishali Pinto Jayawardene
The 1970s-1980’s Prevention of Terrorism (PTA) playbook wielded with consummate skill by his uncle Junius Richard will not work in modern-day Sri Lanka, President Ranil Wickremesinghe must be categorically told.
Absurd actions of the State
In fact, the comedy of errors where well-known sports champions to well-meaning citizens who provided food and water to young protestors are being hauled up by the Criminal Investigation Department (CID) would be funny if it was not so deadly serious.
There had always been a touch of farce about the way that Sri Lanka’s Deep State operates. I remember appearing in a case where a Tamil engineer had been arrested under the PTA by a famously wayward police and army checkpoint off Stanley Wijesundera Mawatha purely because he stuttered.
That was the only reason that the police could present hesitatingly before the Supreme Court when the arrest was challenged, the police officers themselves conscious of the absurdity thereof. That was not only the only thing absurd about that case.
This unfortunate professional had been arrested on grounds of ‘suspiciously stammering’ when all he had was a natural stutter, taken to the Colpetty police station and left to his own devices outside unguarded while the police officers who had him in their charge, went inside to have a cup of tea.
Goebbels himself would have been proud of the Sri Lankan State. When asked why he did not take the opportunity to flee, that professional said, ‘I did not want to, I wanted to clear the matter up through the law.’ That would be fine, if the law worked in Sri Lanka. In that case, even though he was kept in prison and forced to pay money to an attorney who had worked out a deal with the police to appear for persons arrested under the PTA by extorting money from those persons, finally his injustice was vindicated.
Use of the PTA against many protestors is contrary to law
What he was left with were the mental scars and humiliation of that experience. But can we say the same about the hundreds of others who are arrested under the PTA, some tortured to death, others left to rot in cells till they die of natural causes?
The current use of the PTA against student activists and protestors who rose en masse against the Rajapaksa Presidency which catapulted Sri Lanka into bankruptcy, has attracted hugely negative international attention.
Former leading light of the Sri Lanka Podujana Party, now temporarily carving out a different political space for himself, former Minister and onetime law professor GL Peiris has warned against resorting to the PTA. His logic is that this passes a ‘wrong message’ at a time when a team of the International Monetary Fund (IMF) is in Sri Lanka negotiating with the Government to reach a staff level agreement to ward off effects of the country’s acute financial crisis.
But the rationale therein is topsy-turvy. The PTA must not be used, not because of ‘international scrutiny’ or the ‘wrong message’ that is conveyed. Simply put, it must not be used because its application to citizens who were protesting in good conscience against bad state policies is contrary to law. This principle has been articulated thousand times and more by the Supreme Court.
Right to advocate the ‘overthrow’ of the Government
In fact, in the context of an actor turned parliamentarian who was released after he apologised for committing contempt of court in referring to judges (and lawyers) as corrupt, perhaps the Bench may turn its attention to the entire machinery of the State which has demonstrated its profound contempt for the Court in totally disregarding its directives to state agents in regard to how they may arrest citizens.
That would be a novel exercise of the powers of contempt, often critiqued for being used only when the integrity of the judiciary has been impugned.
Time and time again, the Inspector General of the Police (IGP), no doubt acting on a higher command, has used the PTA against peaceful protestors in a manner that is completely contrary to the Constitution and warnings of the Court.
The prevalent thinking is that there is no right to criticise the Government. Citizens are being questioned, some summarily arrested and thrown into jail. The numbers are such that there is no accurate record of how many have been detailed since the protests against the Rajapaksa State commenced a few months ago.
But the right to protest, even to advocate the ‘overthrow’ of the Government is very much part of our constitutional rights. In the noted Ratawesi Peramuna case for example (Channa Peiris v AG, 1994), participants in a “movement” called the Ratawesi Peramuna were arrested under Emergency Regulations similar to the PTA by the police. This was on the basis that they were engaged in a conspiracy against the government after police officers had eavesdropped on their discussions exhorting citizens to ‘topple’ the Government.
The case that the State has to answer
The arrests were held to be unconstitutional, violating the rights of speech, expression and association. What the Court said at that point is worth reminding the President and law enforcement heads. The judges noted that, ‘As a matter of law, merely vehement, caustic and unpleasantly sharp attacks on the government, the President, Ministers, elected representatives or public officers are not per se unlawful…legitimate agitation cannot be assimilated with incitement to overthrow the government by unlawful means.’
They added that, ‘what the third respondent is supposed to have heard, even according to the fabricated notes he has preferred, was criticism of the system of Government, the need to safeguard democracy, and proposals for reform.’ What better fit for what Sri Lanka’s young protestors had been doing, in the main, for all these months?
Were they not criticising the system of Government, the need to safeguard democracy, and proposals for reform? What ‘terrorist’ act is implied thereby?
Does the State not have a case to answer in that regard?
The Supreme Court went on to say, in the Ratawesi Peramuna decision that, ‘The call to ‘topple’ the President or the Government did not mean that the change was to be brought about by violent means. It was a call to bring down persons in power by removing the base of public support on which they were elevated.’
Bizarre paradoxes in the behaviour of the State
Quite apart from arresting citizens who gave food and water to the placard holding youth, there is that peculiar incident of arresting the woman who threw Mahinda Rajapaksa’s goons into the Beira Lake after they came to assault peaceful protestors at Galle Face Green on May 9th 2022. What better example than this to demonstrate the utterly bizarre behaviour of law enforcement officers?
Those who came to violent intent to assault under the command of certain former Ministers are left unscathed whilst those who defended themselves are rounded up?
Worse, those ex-Ministers strut around in expectation of ministerial portfolios in the Wickremesinghe Presidency. Let us be very clear on the paradox thereof. The fact that gas and fuel shortages have lessened to some extent does not mean that the angry discontent of the populace has settled. Use of the PTA speaks to the Government’s chillingly tested and tried methods of repression. But these methods have not worked in the past. They will not work in the present.
The President may perhaps look to his uncle’s experiences to learn that salutary lesson.