For all law students studying constitutional norms and the protection of fundamental rights, Rajapaksa vs Kudahetti and others (1992, 2 Sri LR 223) is a classically standard case study. Indeed, there are good reasons why this is so. The case itself is interesting for its factual context. And the conservative judicial response which it invoked lends itself very well indeed to spirited classroom debates as to whether the Court could have reacted differently or not.
What is national pride?
Abstract legal principles aside, this case came to my mind on seeing the admonition recently administered by President Mahinda Rajapaksa that opposition parliamentarians should not travel abroad to criticize the country. Instead, as he has said, India should be held out as a role model where opposition parliamentarians are possessed of sufficient ‘national pride’ so as to not to hold the country up to scrutiny overseas.
How correct was the President to say this? Let us look at the 1992 case with which this column commences and not only for the most delightfully coincidental reason that the chief protagonist in that instance was the current president himself.
Then, Mr Rajapaksa, as an opposition parliamentarian, had proceeded to the Katunayake airport in September 1990 to board a plane for Geneva with the intention of presenting documents relating to the enforced disappearances of persons (of mainly Sinhalese ethnicity) before the 31st session of the Working Group on Enforced or Involuntary Disappearances.
Demonstrating rightful indignation
At the airport, an Assistant Superintendent of Police had informed Mr Rajapaksa that his baggage needed to be examined for fabricated documents ‘which were likely to be prejudicial to the interests of national security, and which were likely to promote feelings of hatred or contempt to the Government.’ This was an offence under Regulation 33 of the Emergency (Miscellaneous Provisions and Powers) Regulations prevalent at that time. Mr Rajapaksa objected and wanted to speak to a lawyer. He spoke to his party leader, the late Sirimavo Bandaranaike and thereafter ‘threw the bags’ at the police officer asking him to examine them. During the ensuing search, documents containing information about missing persons and photographs were recovered. A receipt was issued by the police officer who conducted the search relating to the recovery of the documents which was countersigned by Mr Rajapaksa who however refused to make a statement to the police. He was thereafter permitted to go on his way.
The extent of indignation felt by Mr Rajapaksa at that time by this act of examining his luggage as if he was some criminal was undoubtedly great. He took this matter before the Supreme Court on the basis that a number of his rights had been violated. Amerasinghe J. writing for the Court declined to hold that an arrest had actually taken place. Mr Rajapaksa had not been actually prevented from proceeding on his travel. He had not been forced to go to a police station or ‘to other designated places under surveillance and to remain under the control and coercive directions of law enforcement personnel or any other authority.’ Further, it was opined that the documents that were taken from him were of evidential value only and their being withheld had not prevented Mr Rajapksa from putting his concerns before the meeting. In the circumstances of the case, Mr Rajapaksa’s application was dismissed but with the Court warning that the outcome may have been very different if he had been arrested or prevented from travelling.
Forgetting the past
Currently adorned in the magnificent albeit oppressive trappings of the Executive Presidency today, it is true that President Mahinda Rajapaksa is certainly far from the human rights crusader that he once was. And in these difficult times, rarely perhaps would any person, opposition parliamentarian or otherwise, who is stopped and searched at the Katunayake airport for material prejudicial to national security, be permitted to proceed on the scheduled travels. It is far more likely that this unfortunate individual suffering that exact sense of rightful indignation once felt by President Rajapaksa two decades back, would be compelled to undergo an interrogation thereafter.
But when Sri Lanka’s Executive President advises others that criticism should not be taken beyond territorial boundaries as a matter of ‘national pride’, he is certainly forgetting his past. Where, one may ask, is the distinction between issues of concern then and now? Should we not divest ourselves of this tremendous hypocrisy that surrounds us in all shapes and forms?
Return of sanity and sense
When the Bush administration in the United States was attempting to suspend the writ of habeas corpus for detainees of a certain category in its misdirected war against terror, American activists and groups strenuously opposed these policies both at home and abroad. Here too, the language of ‘traitors’ were used against them. Nevertheless, history has vindicated these efforts and a different administration has been forced to at least acknowledge the mistakes of the past, though not enough has been done to rectify them.
It is in the natural order of things that collective and individual sanity and sense would also, in like manner, return to Sri Lanka in due course.
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