The European Union pointed out certain discrepancies in the amended Prevention of Terrorism Act. Sri Lanka took notice of the ambiguities and promised to rectify them. The EU also requested to lift the ban on imports from Europe and Sri Lanka responded stating that it would, when the foreign exchange situation improves
A mid a plethora of bad decisions, the ruling party occasionally takes a decision that is worthy of praise. The release of lawyer Hejaaz Hisbullah is one such moment where the authorities seemed to have dispensed somejustice and ensured the free movement of individuals.
Hejaaz was behind bars for nearly two years under the Prevention of Terrorism Act (PTA). and the International Covenant on Civil andPolitical Rights. ( ICCPR) Act. The national intelligence arm asserted that he had a hand in the Easter Sunday attack that was unleashed on Christian churches and several other places including a few high-end hotels in the city. The specific charge against Hejaaz was that he conducted classes for children between 8-13 years where they were fed extremist ideas and thoughts. According to the indictment, Hejaaz Hizbullah came under the microscope of the law for making certain statements to students in contravention of the PTA. and the ICCPR laws. The decision to release Hejaaz came from the Attorney General after he decided not to raise objections to the bail application filed on Hejaaz’s his behalf.
The regime in power picked on Hejaaz for being a crusader for justice and equality.
His role as an eloquent constitutional lawyer at times is unparalleled.
He brought in sound arguments against Mahinda Rajapaksa holding the premiership following the so-called October 2018 constitutional coup to oust Ranil Wickremesinghe from the office ofPrime Minister. He and prominent Senior Counsel Kanag-Iswaran PC made the perpetrators of the alleged constitutional coup look nincompoops.
Hejaaz, before his incarceration, was a promising young lawyer who proved his mettle. However, he faces charges before the PuttalamHigh Court under the PTA. and the ICCPR.
Initially, though there was an understanding between the Attorney General and the defence to release him when the case came up before the Puttalam High Court, it did not happen. The presiding High Court judge denied bail statingthat the High Court has no jurisdiction to give bail to persons charged under the PTA. Defence lawyers then filed a revision application in the Court of Appeal to obtain a direction to the High Court to release Hejaaz on bail. The Court of Appeal enlarging Hejaaz on bail said the following:
Four decades have passed and the PTA has strayed far away from its historical context. The PTA, if in its application and implementationcreates a vicious cycle of abuse, the very purpose of the statute will be defeated. Thepreamble of the Act refers to the affirmation that “……. men and institutions remain free only when freedom is founded upon respect for the Rule of Law and that grievances should be redressed by constitutional methods…….” (emphasis added). However, it is alleged that the PTA has been utilised at times to the detriment of personal liberty by its draconian implementation. In such a context, even the executive branch of the government is considering the amendment of the PTA (The gazette of the Democratic Socialist of Sri Lanka Part II of January 21, 2022; Issued on 27.01.2022 and published by the Minister of Foreign Affairs), expressing a willingness to balance the need to eradicate terrorism against personal liberty as enshrined in the fundamental rights chapter of the constitution. Ultimately, it is up to the legislature to ensure that the draconian elements of the law combating terrorism are dispensed with per modern-day contexts. Until such time, it is the judiciary’s duty to employ existing legal provisions and constitutional powers to interpret the same elements in the interests of justice. His Lordship Justice Sripavan (as he was then) in Thilanga Sumathipala V AG (supra) held that “where the statute fails to provide a solution or offers a solution that is inconsistent with the basis of natural justice provisions of the constitution, the court is forced to frame a new precedent that will not exhibit these defects”. As observed above, the Court of Appeal is empowered to fulfil just that in exercising its revisionary jurisdiction under Article 145 of the constitution. CA/ PHC/APN/10/22 Page 7 of 8 07/02/2022 IJ-05-22. As such, Section 15(2) of the PTA which provides that “upon the indictment being received in the High Court against any person in respect of any offence under this Act or any offence to which the provisions of section 23 shall apply, the court shall, in every case, order the remand of such person until the conclusion of the trial” should be construed in a manner that the powers vested with the Court of Appeal are not abrogated. This is in line with the sovereignty of the people as enshrined in Article 4 of the constitution which provides that the judicial power of the people is exercised vis-à-vis the court. Any attempt to abrogate the powers delineated by the constitution itself would be tantamount to an interference with the sovereignty of the people. As such, it is the considered view of this Court that the revisionary powers vested with the Court of Appeal allow the same to consider the grant/refusal of bail for suspects/accused under the PTA. (extracts from the order made by the Court of Appeal)
It is pertinently clear that the ruling coalition has used the amendments to the PTA and subsequent release of Hejaaz as face-saving devices to shield the onslaught by the US-backed international community at the March sessions of the United Nations Human Rights Council(UNHRC). They are also inclined to save the GSP+ facility, which could be more or less a bargaining commodity with the European Union in exchange for a clean human rights record forthe country.
The EU and the Sri Lankan delegation held extensive bilateral talks in Brussels over the past few days.
The European Union pointed out certain discrepancies in the amended PTA. Sri Lanka took notice of the ambiguities and promised to rectify them. The EU also requested that Sri Lanka lifts the ban on imports from Europe. Sri Lanka responded, stating that it would once the foreign exchange situation improves. The administration is taking unusual steps to strengthen foreign relations given the forthcoming Human Rights Council sessions where Sri Lanka has to testify on various human rights abuses allegedly committed during the past year and the years before the end of the ethnic war.
Be that as it may as things stand today, it is untenable for the ruling party to counter the criticism levelled by the opposition on the pretext of doing good for the people.
The recent statement by Minister of Energy Udaya Gammanpila met with similar resistance at the government group meeting held last week.
Gammanpila, who is losing his credibility at a rapid pace, came out with the bare truth after a long spell of trying to defend the ruling coalition come what may. Gammanpila had a difference of opinion with the ruling coalition over the deal with New Fortress Energy of the USA to sell the shares held by the Treasury of the Kerawalapitiya liquid natural gas plant. Two other constituent parties of the government were of the same position as Gammanpila.
More recently, he said the financial crisis faced by the government was not due to the Covid pandemic that plagued the country as the government would have liked to attribute. He argued how other countries in the region faced a similar situation or worse, but their economic growth was intact with resilient economies bouncing back to maintain the status quo. He pinpointed that Sri Lanka was a different kettle of fish with mounting debt portfolios reaching a pinnacle and eating into the economy.
At the government group meeting, the backbenchers of the ruling party took Gammanpila to task but he stood his ground. Gammanpila reiterated his position at the cabinet meeting in the same tone, but nobody spoke against him.
The government’s position is that they successfully thwarted the spread of the Covid pandemic and saved the country from yet another disaster following the ethnic war that plagued the country for nearly three decades. The truth is that every government in power did their best to resolve the issues with good intentions. Be it J. R Jayewardene, R. Premadasa, Chandrika Kumaratunga or Mahinda Rajapaksa, they had equal shares in their contributions. However, Mahinda Rajapakse had the opportunity of leading the final phase of the war, giving the leadership on the ground to the able Army Commander at the time, Sarath Fonseka.
The present government messed up the pandemic through procrastination and running behind mythical beliefs. A charlton was encouraged to produce a “divine elixir” as a promising cure for the pandemic. Several ministers including Prasanna Ranatunga, Udaya Gammanpila and Pavithra Wanniarchchi were instrumental in throwing chanted water pots to the rivers to no avail.
When a suggestion came from opposition benches to rely upon scientific methods rather than myths, Minister Vasudeva Nanayakkara said the decision to embark on a vaccination programme was the government’s prerogative. The inordinate delays in getting a reliable vaccine became a complicated issue because of the inability of the Serum Institute of India to provide ample stocks. India was on the brink of a collapse owing to the fast-spreading pandemicand the Serum Institute could not supply amounts necessary for the first dose of the vaccine. Sri Lanka virtually had to rely on handouts from India, Russia and the USA. If the government took timely action the recorded number of deaths may have been low. However, when the government started its vaccination programme, the opposition parties found fault with the political authority for purchasing Chinese vaccines for more than the market price. The government denied this accusation vehemently, but it is no secret that several sharp-witted business persons close to the top notches of the state machinery had made large sums of money through various effects sold to the government.
The government’s ambition is to seek reelection at the next hustings. The Anuradhapura meeting of the ruling Sri Lanka Podujana Peramuna (SLPP) which was held last week, widely claimed to be their inaugural campaign meeting in readiness for a provincial council electionnext year, was a success according to government politicians themselves. Despite what they say, the people are aware of the track record of the rulers that brought in a lot of misery to the ordinary people during the past two years. It was reminiscent of the 1970-77 era where people languished in long queues even to buy a loaf of bread. People still remember the era with a lot of anguish and hatred and hardly see any difference between the two eras.(ALAKESWARA)
