The 'ides' of February 2010

By Kishali Pinto Jayawardene

(February 15, Colombo, Sri Lanka Guardian) If one may be pardoned for departing from the strict etymological sense of the term, it may well not be the Ides of Marchbut rather the Ides of February 2010 marked of note when public anger at the arrest and initial incommunicado detention of the country's former Army Commander and losing Presidential candidate spills over to the streets of Sri Lanka's capital and towns and seems poised to fashion itself into a political movement that challenges the very heart of the current administration.

Anti-democratic events and warnings of religious leaders

What we have seen during the past week is unprecedented and not only because for the first time, lawyers have (like their counterparts in Pakistan) formed part of this protest movement. It is also unprecedented as measured against the severe warnings that the leading Buddhist prelates and the Christian heads of clergy together with some Roman Catholic Bishops have issued in respect of the anti-democratic nature of current events.

These warnings are timely. Of particular note is the prelates' warning that 'an uncertain situation has developed in Sri Lanka with regard to democracy and good governance' amidst the convening of a special gathering next week. The statement issued by the Christian and Roman Catholic head of clergy was also emphatic in regard to what they termed as the 'willful violation of electoral laws which sadly demonstrated that might is right.' Their specific emphasis on the fact that 'the Election Commissioner's public confession amply endorsed' the above was significant.

Classic hallmarks of represssion

Again, the situation is also unprecedented in respect of the increasing anger shown by judicial officers of the lower courts in relation to police actions during the past weeks which showed distinct partiality towards undemocratic actions of government supporters. The reprimand issued by Colombo's Chief Magistrate against the police for allowing armed thugs to attack peaceful protestors in Hulfsdorp this week is a good case in point.

One month ago, the fear on the part of some living among us was that we would be compelled to live in a military dictatorship. Yet, what are exactly are we seeing now? We see the classic hallmarks of repression wherein peaceful protests are subdued violently by the police and pro-government supporters, the abduction of one journalist and the arrest of another with no effective investigation or due process and attempts to shut down anti-government newspapers coupled with threats and intimidation of dissenters. What else is repression if not this, one may well question, however spotless white may be the garb and however seductive the explanations?

A pariah nation's fate?

To cap it all, a purportedly losing Presidential candidate (and that too with a purportedly massive margin of 1.8 percentage of the national vote) is dragged away manacled and held for days incommunicado with his wife having to go public, appeal to the International Committee of the Red Cross (ICRC) for access to her husband and finally before the Supreme Court to (at least) bring in an element of judicial supervision over the circumstances of the arrest and detention.

The element of profound irony in this is, of course, the fact that this is exactly what several wives of arbitrarily arrested or abducted persons were compelled to resort to during recent years, including detained journalist JS Tissainayagam (then) and abducted journalist Pragneeth Ekneligoda (now). This is what happens when the Rule of Law breaks down. Last year, it may be the fate of an ethnic Tamil journalist or some other unfortunate and today this may well be the same fate of a former Army Commander.

What is piquantly different now is the fact that such a fate has visited a losing Presidential candidate. Such situations are illustrative not of a country like Sri Lanka which has, with all the considerable turmoil that she has faced over the past decades, managed to keep intact a measure of integrity in the national electoral process until now. On the contrary, it is symptomatic of some pariah nation destined to become a laughing stock in the eyes of the world and to prove those who maintain that we cannot resolve our own problems of governance and Rule of Law precisely right. Is this what we are reduced to now?

Equally laughable are the pontifications of Export Development and International Trade Minister former law professor and Vice Chancellor of the University of Colombo now turned expedient politician GL Pieris when he has the audacity to preach to the public on due process in regard to the arrest and detention of the joint opposition common candidate. When will we see this farce come to a close?

Application of legal principles

Some common legal norms in relation to this upheaval may now be usefully reiterated. First, the jurisprudence of the Supreme Court has long been that arrest of any individual must be for stated reason objectively assessed as being necessary to justify arrest. As what was stated by the Court when ruling as unconstitutional, the unjustifiable arrest and detention of a former opposition parliamentarian many years back, "The police had their suspicions and hoped that some evidence might turn up to make their suspicions reasonable. However, vague, general suspicions and the fervent hope or even confident assumption that something might eventually turn up to provide a reasonable ground for an arrest will not do" (Rodrigo v de Silva, 1997, 3 SLR, 265).

A suspect so arrested must also be specifically told the reasons for arrest and putting a detention order or any other order showing the purpose of arrest after the arrest will not do. Application of these legal principles to the facts of the petition filed on behalf of the joint opposition candidate will be decided in due course and it is not the intention of this column to prejudge the matter in any way whatsoever.

That being said, the other most direct legal issue in question concerns the forceful breaking up of numerous peaceful protests against the arrest and detention of General Fonseka in Colombo and other parts of the country. Legal norms in regard to this are extremely clear. As articulated by the late Justice Mark Fernando in what is popularly referred to as the Jana Gosha case (Amaratunge v Sirimal and others, [1993] 1 Sri LR 264), 'Stifling the peaceful expression of legitimate dissent today can only result, inexorably, in the catastrophic explosion of violence some other day.'

In this instance, as one would recall, it was the Sri Lanka Freedom Party that had engaged in a 'noise protest' as a means of showing their disapproval of the policies and actions of the Government. The protestors were assaulted and tear gassed. President Mahinda Rajapaksa was at the forefront of those protests at that time. The Court, in ruling that this action violated the petitioner's fundamental right of speech and expression, stated unequivocally that the right to support or to criticize Governments and political parties, policies and programmes is fundamental to the democratic way of life.

A prayer for sanity

It is an exceedingly sad reflection on President Rajapaksa that he needs to be reminded of these principles at a time when those who oppose him in turn are being tear gassed and assaulted on the streets of Colombo and elsewhere, aided and abetted by the police. Clearly, this madness has to stop.