Using the Archaic Official Secrets to Demarcate Some Areas as High Security Zones: is there fear that the ‘Aragalaya’ may spirit away ‘secret documents’ from places declared as High Security Zones?

By

Kishali Pinto – Jayawardene

Whatever the motivations for the Ranil Wickremesinghe Presidency to drag the Official Secrets Act (1955) out of cold storage and employ its provisions to declare certain places as ‘High Security Zones,’ that decision is both foolish and counter productive.

Waving of the red flag to an enraged bull

The Wickremesinghe Presidency may, perchance be the first executive Office to use this long discarded law in peacetime Sri Lanka. The message that this conveys is deeply unwise. For the nation’s indefatigable protestors, this is the proverbial waving of the red flag to an enraged bull. During the past several months, Sri Lankans furious with politicians who robbed the public purse, refused to be deterred by Emergency Regulations and the Prevention of Terrorism Act, both familiar weapons in the Government’s arsenal.

If so, it is absurd to think that the much mocked and lampooned Official Secrets Act will fulfil that purpose or deter public unrest. No law, no amount of guns, bristling barricades and armed security forces can stop the infuriated masses. This we saw very well when a President, a Prime Minister and a Cabinet resigned as the back of the Rajapaksa Security State was broken earlier this year. Is it hoped that bringing the Official Secrets Act back from the ‘legal dead’ as it were, will rejuvenate that dream?

This is a law that various Governments had promised to repeal but never quite done so, partly because there was no great public pressure. It had been virtually discarded due to non-use. Its impact is largely on freedom of expression and has been commonly used as such elsewhere, when for example, government servants leaked official secrets to the media. The very term, ‘official secrets’ is a misnomer in a modern information era which this President was instrumental in supporting during better times.

Using the Official Secrets Act for a different purpose

Ironically, the Wickremesinghe Presidency may well distinguish itself (and I do not mean that as a compliment) by being the first regime to use this Act for a purpose most spectacularly unsuited for its primary objective.

A ground rule which first year law students are taught is that laws enacted for one purpose must not be used for other purposes. The short title of the Official Secrets Act states unequivocally that its object is ‘to ‘restrict access to official secrets and secret documents and to prevent unauthorised disclosure thereto.’

The stress herein is on documentation and disclosure. And so, this begs the question, is there fear that the ‘Aragalaya’ may spirit away ‘secret documents’ from places declared as High Security Zones? In fact, the gazette notification released under Presidential hand on 16th September 2022, sits oddly with Section 2 under which it is purportedly issued. Parliament, courts complexes, the Presidential Secretariat, the President’s House, the Ministry of Defence, SL Army Headquarters, Akuregoda, Prime Minister’s Office, Temple Trees and the headquarters of the tri-services are declared as High Security Zones.

True, Section 2 confers power to declare certain places as ‘prohibited places’ with restricted entry. But this is for the limited purposes of the Act, ie; to safeguard ‘official secrets’ and ‘secret documents,’ whatever those may mean. The confusion that is generated by dragging in High Security Zones into that very specific mix is pronounced. From the point of view of the State itself, easy resort to laws meant for another age and another purpose, carry multiple dangers.

A confusing mix of bad laws

Section 5 of this Act prohibits inter alia, approaching, inspecting and so on, any ‘prohibited place’, making notes therein, taking photographs, sketches or models etc if done for ‘any purpose prejudicial to the safety or ‘interests’ of the State. Technically therefore, adventurers and tourists alike happily ‘approaching’ the Parliament or the Presidential Secretariat at Galle Face Green (gazetted under Section 2) may run afoul of these prohibitions even though the gazette itself is silent on the same. There are more statutory oddities similar in nature.

This can only increase the panic of law enforcement officers as they run wildly from one Magistrate’s Court to another, getting rapped over the knuckles by judicial officers. Now, the Official Secrets Act is also added to this mix of bad laws, along with the Penal Code, the Offences Against Public Property Act, the International Covenant on Civil and Political Rights Act and emergency laws. Per se, the 16th September gazette is problematic. Section 10.(1) requires chief occupants of buildings situated within a High Security Zone to produce a list of permanent or temporary residents to the police.

Similar requirements exist regarding lists of all employees working in such buildings. Police powers on entry and inspection are enhanced. All of these restrictions in non-war times signal Sri Lanka’s entering into a Police State.

Now that the “Official Secrets’ genie has now been released from the bottle, again, I ask, where do we go from here? Sri Lanka’s media may well look upon this gazette notification as restricted in its scope. Yet that complacency is dangerous. What is there to stop the State from next utilising provisions of the Act precisely for its core purpose, ie; to clamp down on freedom of speech and expression?

Use of archaic laws to what end?

The definition of what constitutes an ‘official secret’ in this Act is vague and overbroad. Section 27 (iv) for example, defines this inter alia, as ‘any information of any description whatsoever relating directly or indirectly to the defences of Sri Lanka.’

What does this even mean?

Like the priest’s robes which can cover a multitude of sins, these open-ended phrases ‘chill’ the holding of the State to account. Fierce critiques of these provisions by constitutional advocates date back decades.

In sum, the trigger-happy and defensive resort to the Official Secrets Act speaks to a State terrified of itself. Politicians are barricading themselves, metaphorically and literally, in anticipation of the backlash emanating from the aggravation of the financial crisis.

But history teaches us differently. The French, Russian revolutions and nearer home, the rising up of the Indian populace against the British, their hated colonial rulers, impart valuable lessons.

In other words, a nation can never be collectively oppressed to the point of silence. The wiser course of action for the Presidency and the Government lie elsewhere. Concrete advances must secure the Rule of Law not by lectures, political directives or using archaic laws but through the fair working of constitutional and legal protections. Gross political corruption which has bankrupted the nation, must be properly tackled, the legal system fine-tuned for that purpose.

Racist and chauvinist policies must be abandoned along with rabid fear mongering. Difficult times must be faced with national purpose and energy. All this is, of course, whistling to the winds. That course correction will never happen.

It is said that, whom the Gods wish to destroy, they first make mad. This is a case of a nation going mad as perpetual unrest looms, poised on the dagger-edge of public unrest apt at any point, to flare up to a violent conflagration.

These are distinctly worrying times.

Courtesy:Sunday Times