The viral pandemic of the mind and Sri Lanka’s loss of the law

Even as petitions are collected and hands are rightfully wrung for redress regarding the arrest and detention of attorney Hejaaz Hisbullah, it is timely to recall (despite a tad unkindly) that if the attempt to push through Sri Lanka’s draft Counter- Terror Act had succeeded at the height of the ‘yahapalanaya’ years, abuse of civil liberties in these covid- fearful times would have been a hundred fold worse. What is unfolding before us is a grotesque caricature of constitutional safeguards. Even so, it could have been manifestly darker.

Fairy tales cannot justify arrests

This country’s Prevention of Terrorism Act (PTA) is a misshapen creature no doubt. Yet it is of familiar form and can be challenged by a plethora of formidable legal authority, not the least of which is that, Detention Orders must be signed by the proper authority and must not be ‘speculative’ in nature. As late Justice Ranjith ( ARB) Amerasinghe proclaimed when a former Cabinet Minister was sought to be arrested under emergency law for allegedly plotting to assassinate a President, (the Sirisena Cooray case, 1997), ‘reckless disregard’ for personal liberties is a most profound violation of the Constitution.

In other words, state agents cannot arrest an individual and then hunt around to justify the reasons why or weave fairy tales with favorite bogeymen without objective reasons existing at the time of arrest. This is a fundamental caution that officers of the Criminal Investigation Department must remember as they release explanations for the arrest of this attorney to sympathetic journalists. That said, if that little lamented draft CounterTerror Act had welcomed the statutory light of day, the very thought of consequences thereto in this terror stricken climate causes shudders to run up one’s spine.

That draft was hawked by international agencies supporting the ‘yahapalanaya’ regime which flamboyantly sought to import international models of counter-terror into this land. It permitted senior police officers scattered throughout the land to sign Detention Orders rather than retaining the power as a high executive responsibility, thus rendering the exercise of that power more difficult to justify. Thankfully and as a not unimportant aside, it must be said that this high bar remains to be satisfied in this particular arrest. But let us not forget that this relaxation of authority to sign Detention Orders was just one of many extraordinarily measures permitting widespread abuse in a more than eighty page Counter Terror draft that would not have looked out of place in a totalitarian regime.

Principle must predominate in application of the law

It did not need extraordinary prescience to predict how disastrous this would be. But confident ‘regime changers’ who did not think that ‘yahapalanaya’ exuberance will ever fade, waved their hands and excused its farcical and secretively drafted contents. Let us also not forget that it was only after early drafts were leaked to this newspaper allowing public critique, that steps were taken to mitigate some of its obvious excesses including allowing access to personal bank records by the police without judicial oversight. That too, grudgingly and after several attempts to hoodwink critics by changing terminology and ‘hiding’ vague clauses couched in obscure language.

Indeed, it was a cruel irony that, even after forsaking responsibility for Sri Lanka’s national security in the background of Easter Sunday’s jihadist attacks on churches and hotels last year, all that the Wickremesinghe led band of United National Party (UNP) allies could do was to push this draft till the very day that they were ejected from power. Interestingly the Rajapaksa-led ‘Pohottuwa’ joined in the chorus of opposition to the counter-terror draft, keenly aware of the manner in which it could be used to clamp down on the Opposition. Now that roles are reversed, it would be useful to know if the cacaphony of support for this Bill among its onetime supporters, persists.

Regardless, the point is that ‘ Yahapalanaya’ then or ‘ Rajapaksa’ now, principles must predominate in the formulation and application of law, not political agendas, ethnic or racial prejudices. So as the Bar Association of Sri Lanka ( BASL) collapses into cowed silence despite the continuing detention of this attorney, questions arise. Given the fact that, one of the primary reasons for the issuance of the initial statement by BASL on the arrest was its concerrn that ‘reasons had not been given,’ is its considered opinion that reasons have now been sufficiently given? Or are we now at the absurd stage of contending that giving reasons for arrests constitutes an ‘interference with the investigation,’ as some lawyers not worth their professional credentials have tried to argue?

Ferocious consequences of the past

Mixing up concern regarding the manner in which this arrest was carried out and justifiable outrage over the Easter Sunday attacks last year and its hateful perpetrators is to entirely mistake the issue at hand. Pre and post those attacks, these column spaces have been forthright in assessments of those who were blind to the stealthy growth of Islamist radicalism literally in the midst of civil societies in Kattankudy, Mawanella and elsewhere. It is no answer to this to say that some did protest to the authorities who turned a blind eye. The fact is that this was something more than just clashes between different Muslim religious sects. It involved training camps and organised Islamist radicalism which had a life and growth of its own.

So the question is also as to why this creeping Islamist radicalism was denied in ponderous papers and theses written by those focusing on the evils of Sinhala Buddhist majoritarianism? Does the existence of one evil cancel the need to question the other evil? In fact, questions to that effect even before the Easter Sunday barbarities only provoked defensiveness and denial. It is time to recognise that this is a cycle of prejudices and counter-prejudices.

For if the period 2015- 2019 had not made the Sri Lankan public sick and tired of the very mention of ‘ democracy’ perhaps we may have had a better chance of facing and besting the the anti-democracy beast, which has now skulked from the shadows to the open. We are now at a point where a global health pandemic has enabled those (brought into power as a ferocious reaction to ‘yahapalanaya’ mistakes) to stamp on the embers of Sri Lanka’s democratic albeit always fragile Republic. So will reminders of the past compel at least some of us to pause and reflect on mistakes?

‘The broken jaw of our lost kingdoms’

Not so. Lessons yet remain to be learnt on how not to do ‘good governance’ or for that matter, constitutional drafting or counter-terror reforms.

It is safe to predict this as much as it can confidently be said that devastation brought about by the corona virus pandemic will not teach arrogant humanity any lasting lessons. Its belief that it has tamed the planet and can continue to ravage the living environment and animal life will persist once the initial shocks are overcome. That is, until the next far greater pandemic catches humanity in its grasp. This is the way that countries and ‘hollow men’ perish, as T. S. Eliot famously warned, recalling the ‘broken jaw of our lost kingdoms.’

Indeed, this is how liberties and the world dies, ‘not with a bang but with a whimper.’