Does a President flippantly sign gazettes, so clearly ultra vires the principal enactment,on matters of high national security in the same manner as hurriedly grabbing a cup of coffee while dashing out of the house for work?


By

Kishali Pinto – Jayawardene

The recent declaration of several High Security Zones in Colombo under Sri Lanka’s virtually obsolete Official Secrets Act has continued to raise feverish speculation in regard to the motivations behind the bizarre Presidential act.

Have we lost our collective legal wit?

Amidst rumours that the contested gazette will be withdrawn, (it still continues), the larger question speaks to a vexed problem with the functioning of the State. This is perhaps even more concerning than the Official Secrets Act being used for a purpose for which it was clearly not intended. Said with force in these column spaces last week, the core point in issue needs to be reiterated for the simple-minded. Put bluntly, the Government cannot declare High Security Zones under Section 2 of the Official Secrets Act as Section 2 does not permit the declaration of such zones.

Section 2 only allows the declaration of ‘prohibited places’ for the limited purpose of safeguarding ‘official secrets.’ The ministerial nitwit who hit upon this bright idea must be knocked smartly over his ears. Has the Department of the Attorney General stopped advising the Government and the Office of the President on matters of this nature?

Or have we all lost our collective legal wit to allow such idiocies to occur in the first instance? Apparently the state law office has been left in the dark as some well strategised media reports mutter.

We are informed that the gazette has, ex post facto, been referred by President Ranil Wickremesinghe to the Attorney General for advice. If so, that is even worse than the ‘original sin’ of the Presidential signing this accursed gazette in the first place on 16th September, 2022.

This is a classic example of the gazette ‘cart’ coming before the Attorney General ‘horse’ as it were. Needless to say, it does not invoke confidence when a law is so blatantly misused. How can a gazette so clearly ultra vires the principal enactment be flippantly signed by the President no less with nary a care?

Was the signing of the gazette on high security zones done in a dash?

Was this a one-off happenstance, does a President sign gazettes on matters of high national security in the same manner as hurriedly grabbing a cup of coffee while dashing out of the house for work?

This is eerily reminiscent of the same clownishness that was reflected in the totally unacceptable defences advanced by a President, a Prime Minister and the defence establishment when the 2019 Easter Sunday jihadist attacks took place, hitting churches and hotels. Lest we forget, that enabled a Rajapaksa regime change which has, in the bitter fullness of time, resulted in the bankruptcy of the country and the pathetic penury of its people.

One said that he did not know, the other said that he was not called for meetings of the Security Council while the police together with the defence establishment chorused that they ‘knew something was going to happen but did not know that it would be this massive.’ Now, one ex-President is named as a suspect and another sitting President is given a go-home card by the Supreme Court, apparently due to the fact of his incumbency in Presidential Office.

That oddity emanating from the Court, despite the fact that Presidential immunity is lifted for fundamental rights challenges, must be looked at with care and attention at a later point of time.

For now, the question that must worry us is the distinctly peculiar manner in which the legal arms of the Government are functioning. Rattled as the State may have been by the force and vigour of the ‘aragalaya’ storming high State buildings and forcing a President, a Prime Minister and the Cabinet to flee, that does not quite explain the gross stupidity of these actions.

Motivated by a bull-in-the china shop defence establishment (so what is new?) or not, against the advisement of the state law office (as some plead) or not, the fact of the matter is that President Ranil Wickremesinghe signed the gazette.

Is the State run by clowns?

Unless, of course, his long-time hurrah chorus takes the view that a sleepwalking President scribbled his signature. The latest group to raise its voice against this gazette is the business sector which has rightly pointed to ill effects of such sweeping declarations in the commercial heart of Colombo, as designated high security zones.

It is not quite believable to maintain that the President is a prisoner, not of the forces that brought him to power for that would be the ‘aragalaya’ but of the military State. If so, then the much vaunted military State has to be run by clowns, blissfully ignorant of the very meaning of law and policy.

Indeed, if not anything else, it is getting harder and harder for the President’s staunch allies, clustering among Colombo’s elite, to defend his acts. He must surely have some compassion in that regard, even if this is said tongue-in-cheek. One manifest idiocy succeeds another.

Hot on the heels of the gazette purportedly declaring High Security Zones, we have a Bill meant to establish a Bureau for the rehabilitation of “drug dependent persons, ex-combatants, members of violent extremist groups and any other group of persons who require treatment and rehabilitation.”

This asinine treatment of drug addicts and ‘violently extremist groups’ (with no definition of what these ‘groups’ are) lumped in one ridiculously overarching category. That is not the only thing wrong with this Bill. At a time when there is no ethnic or civil conflict in Sri Lanka, what is this talk of ‘violent extremism’ rearing its head, pray? Are these references to the ‘aragalaya’ protestors, harking back to the President’s naming of them as ‘fascist’?

No rhyme or reason to the actions of the Government

If that is the case, there are specific dangers involved in such a crudely designed process. The key here is acknowledging that violence did indeed take place during the ‘aragalaya‘ struggles of previous months but separating the ‘wheat from the chaff’ as it were.

Assuredly this Bill is not crafted with that aim in mind. The Bill plans to hand over the so-called rehabilitation process of such groups to the military authorised for the purpose. Does the State wish for extremism to be re-ignited anew?

In 2003, a Organised Crimes Bill was advanced for Sri Lanka, the contents of which were infinitely better than the sheer lunacy of the Bills that are proposed now.

This columnist was part of the legal team that challenged this Bill in the Supreme Court; the objections taken to its clauses were sophisticated and intricate, founded on constitutional safeguards, based on the possibility that even a well intentioned Bill may result in abuse if not tightly drafted. The Court responded positively, holding that some clauses of the impugned Bill were unconstitutional.

Later, the Bill was withdrawn. It was said that (then) Prime Minister Ranil Wickremesinghe had tossed the Bill into the wastepaper basket after being briefed on its contents. That was a tug of war between establishment thinking which believed that harsh measures are needed to control extraordinary crimes and constitutional values that prescribe safeguards to prevent a law from being abused. But what we have now is something quite different. There is no rhyme or reason to the actions of the Government.

One can only throw one’s hands up in the air and call for divine intervention. Alas, that is not a call that looks as if it will be answered any time soon.

Courtesy:Sunday Times