Is there a higher law than the Prevention of Terrorism Act?

By Simple Man

“Our country is such that if the politician wants to frame you they will frame you for something. If there is nothing at all to frame you they may even claim that your penis is too large for a country of men with small penises, a relative offence to be imprisoned. That’s our country, the Greatest on earth?”

(September 14, Colombo, Sri Lanka Guardian) The above statement by Helasingha Bandara in the article ‘The greatest Country on Earth, agree Simpleman?’ once again raises some very important questions of a philosophical nature. Does Sri Lanka have any law higher than the anti-terrorism law? The importance of this question can be illustrated by an announcement in the court yesterday, the 11th of September 2009, releasing George Master and Daya Master. They had surrendered themselves as being among the LTTE leaders. They were released without any sureties on the basis that according to the Terrorism Investigation Division (TID), there was no evidence to charge them under anti-terrorism laws.

On the 31st of August, J.S. Tissainayagam, an independent journalist who had written two articles a few years back, was sentenced to 20 years of rigorous imprisonment on the same anti-terrorism laws. He was charged with, among other things, trying to aid and abet the LTTE.

Daya Master was an official spokesperson for the LTTE for several years. He openly associated with Anton Balasingham, Thamil Selvam, and Prabahakaran himself. George Master was the official translator of the LTTE and served all these above mentioned persons, and many others. Their involvement with the LTTE at higher level is public knowledge.

Now there is a law called an anti-terrorism law, under which two articles written by a well-known independent journalist working for some reputed newspapers for a long time, have led him to being convicted to 20 years rigorous imprisonment. The High Court judge of Colombo thought the two articles were sufficient to prove the charges under the anti-terrorism laws.

However, a report filed by the Terrorism Investigation Division stating that there was no evidence to charge Daya Master and George Master was sufficient to convince a Colombo magistrate that they could be released.

There is no way the contradiction between the two judgments can be resolved within any superior court in Sri Lanka. Are these two decisions rational? Are they compatible? Can they be justified as being legal?

The answer to that question depends on whether there is any higher law beyond the anti-terrorism law in Sri Lanka. If the constitution of Sri Lanka was a higher law than the Prevention of Terrorism Act, the anti-terrorism law could have been challenged for violating the constitution, and therefore not a valid law. At least many sections of the anti-terrorism law could be challenged on that basis. In fact, some decades ago, many such provisions similar to the anti-terrorism law had been challenged in Sri Lankan courts, and the courts have held such provisions as illegal and void.

But today the constitution does not have that status. Almost everybody is above the constitution, and the executive president is certainly far above the constitution. He can transform whatever he wants into a law that is superior to the constitution. Because of that law, he can make an independent journalist into a terrorist. Or he can make a well-known terrorist into a respectable citizen. The court cannot sit in judgment against whatever the executive president wishes to do.

Therefore, if, as Helasingha Bandara says, having a big penis can be made into an offence, then the law under which it can be done is the anti-terrorism law. Whether it is big or small will also be judged by the Terrorism Investigation Division.

-Sri Lanka Guardian