| by Kishali Pinto-Jayawardena
( July 13, 2014, Colombo, Sri Lanka Guardian) It is a baffling question. Is the blundering of this government in almost every aspect of its domestic and foreign policy, deliberate or sweetly unintentional?
Manifestation of unholy chaos.
Is this part of the unholy chaos that we see with ministers speaking on every topic under the sun resulting in statements being issued by some and immediately refuted by others? And what about press statements that contradict each other with the English versions containing inaccurate translations of the original Sinhala statements leading to virtual international incidents on occasion?
This week’s ‘directive’ issued to non-governmental organizations by the National Secretariat for Non-Governmental Organisations under the Ministry of Defence is another excellent case in point. Taken verbatim, it declares with all the solemnity of a proclamation handed down by the historically infamous Inquisitor prior to torturing heretics in ancient times, that ‘it has been revealed’ that certain non-governmental organizations ‘conduct press conferences, workshops, trainings for journalists and dissemination of press releases.’
But the esteemed gentleman who put his signature on this document may do well to acquaint himself with the fact that no grandiose revelation is in fact, occasioned by such boring activities. Press conferences and the like are routinely engaged in by organizations when the same applies to the work that they do. These activities, by their very nature, are conducted in the open. And in what universe could the training of journalists possibly be seen as a sinister activity?
Offending the maxim of legality
Regardless, with appropriate ludicrous force thereafter, the directive announces that these activities are ‘beyond’ the mandate and that such organizations should therefore (sic) ‘prevent from’ such ‘unauthorised’ activities with immediate effect. But who determines what is authorized and what is not? And who defines what is within a particular mandate and what is not? Is it the Ministry of Defence, god forbid? The applicable act under which the Secretariat functions certainly does not authorize this.
At this rate, the people of Sri Lanka may soon be told that gathering at a wayside tea boutique to gossip over politics may also be ‘unauthorised.’ The first maxim of legality is that restrictions on freedoms if they are to be valid, must be clearly defined, they must be authorized by law and must, importantly, be proportionate. This directive offends on almost every count. Its wildly ungrammatical phraseology is incidental even though this renders it as something to be mocked rather than to be taken seriously.
But this mixture of comic theatre and deadly intent seem to be a toxic combination governing the policies (if they can be referred to as such) of the Rajapaksa administration. Colloquially put, one does not know whether to laugh or to cry.
Access to legitimate information
There are precedents for this type of nonsense even though then, there was a war raging and the excuse was that adventurist actions ought to be restrained. For example, censorship regulations imposed under emergency order by the Kumaranatunga Presidency prohibited any statement pertaining to the official conduct, “moral” or the performance of the Head or of any member of the armed forces or the police forces etc. The question was whether this meant that one cannot comment on the ‘moral conduct’ of the Head of the armed forces and so on? Or is it that “moral” should, in fact, be read as morale? And why should not public conduct be the subject of scrutiny if it is not linked to matters of national security?
These vague and over-broad directives were challenged before the Supreme Court and declared to be unconstitutional. Information that must legitimately be placed in the public domain has to be so placed. This is a first principle of the Sri Lankan Constitution and Article 19(3) of the International Covenant on Civil and Political Rights (ICCPR) to which we are a signatory. These principles are still applicable. Restrictions on basic rights may be imposed only to the extent strictly required by the exigencies of the situation. In the alternative, we may as well publicly toss our Constitution to the gutter. Some may well argue that it is already in the gutter, of course.
Moreover this 7th July 2014 directive was issued at the precise point that Sri Lanka is being besieged by legitimate questions of creeping authoritarianism engineered by a one-family dominated administration. Does the Rajapaksa Presidency need more battles on its front? Charlatans exist in the non-governmental sector as they do in academia, the professional sector or the governmental sector. But this does not justify badly drafted directives lacking legal intent.
Was public life ever more odious than this?
Indeed political charlatans predominate in public life to a worse degree. This week, an innocuous newspaper vendor selling his papers at a small kiosk in the Kurunegala town was (allegedly) hammered by supporters of the Chief Minister of the North-Western province after the kiosk sold newspapers headlined with the recent ugly brawl over a television chat show between this Chief Minister and a parliamentarian tipped to lead the main opposition in the upcoming Uva Provincial Council elections.
These newspaper headlines went amusingly albeit appallingly to the opposing rhythms of ‘he bit me’ and ‘I did not bite him’ on the part of the two brawling politicians. The aggrieved vendor has, with difficulty, lodged a police complaint though the end result of the inquiry is a foregone conclusion.
Was public life this odious even when the State was combating insurgencies in the North and in the South? The answer to this question is unequivocally in the negative.
It is time that we rid ourselves of starry eyed fantasies that the end of conflict in 2009 meant the dawning of a new era. It is time that we insisted on basic decency and the strict observing of legality on the part of politicians as well as powerful public servants who behave worse than politicians in the conduct of our affairs.
Excerpted from the ‘Focus on Rights’ column in The Sunday Times, 22th June 2014 for which newspaper, the writer is a legal consultant/columnist.