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Is the much-hyped crackdown of the National People’s Power (NPP) Government against political scoundrels of past regimes confined to arresting a few politicians here for possession of illegally assembled vehicles, (which are a dime a dozen in Sri Lanka) and a few politicians there for posting news on social media alleged to ‘excite disaffection’ under the penal law and anti-terrorism laws?

That promise to act against ‘political rogues’

That is a fair question to ask, two and a half months into President Anura Kumar Dissanayake’s election victory at the presidential polls. That is so given that a large part of the Dissanayake campaign focused on the NPP waving a large stack of files and vowing to move at the speed of greased lightning against the ‘politically corrupt’ rogues of ‘mainstream’ political parties. More exactly, his Government needs to formally demonstrate as to the progress made and specific cases identified in that regard. 

If studied silence (as manifested hitherto) continues on this, the NPP’s anti-corruption pledge is destined to be a cruel mockery as much as the discreditable corruption fighting efforts of the ‘yahapalanaya’ (good governance) regime of the ill-fated Sirisena-Wickremesinghe coalition (2015-2019). That had its great and the good taking wing to Dubai, the capital of the United Arab Emirates to locate the ill-gotten gains of the Rajapaksas said to be stashed away in banks. This was a futile journey, as intolerably naïve as it was ill-planned.

As we may recall, the Sri Lanka government team were summarily rebuffed for their colossal ignorance of the relevant protocols. Skilful undermining of those efforts by ‘Rajapaksa moles’ deeply embedded in the public service, including the Department of the Attorney General, played a particularly shameful part. Rash setting up of anti-corruption units without legal authority and politically spearheading who should be selected for prosecution were part of those failures.

Time to show that the present is different from the past

That exercise collapsed ignominiously, finally being useful only as political capital for the coalition leaders to manipulate their survival in the befouled spaces of the Sri Lankan political theatre. As President Anura Kumara Dissanayake and his Minister of Public Security were very much a part of the ‘yahapalanaya’ anti-corruption drive, they would only be too intimately familiar with these follies. So, the question is as to whether we are destined to suffer a repeat of the same? NPP loyalists explain that they are proceeding ‘hemin, hemin’ (slowly, slowly) to avoid cases being tossed out of the criminal court.

This has been unfortunately the case previously. But if the present is to be distinguished from the far from edifying past, the Government needs to speak and quickly at that, in regard to its anti-corruption status update, not just proclaim its intention of enacting laws and more laws. That update may be by the President utilising the opportunity to directly address the media on outstanding issues as he did recently or by a more formal communication by his Cabinet spokesman.

Action is needed on existing laws as a priority even as the Cabinet spokesman declared the NPP’s intention to enforce the ‘existing law’ against those who spread communal hatred. Proceeding to that hotly contested topic and in contrast thereto, the Government’s knee jerk reactions (so far) leave a lot to be desired. Clearly, the NPP and its leading party, the ‘Janatha Vimukthi Peramuna’ (JVP) has declared a loud defence of coercive state law enforcement. It has done so with a spectacular lack of political sense and sensibility, if I may be forgiven for being blunt.

More controversy than what it was worth

One excellent example is the rash of cases filed under the Prevention of Terrorism Act (PTA) and Section 120 of the Penal Code hauling social media ‘activists’ as well as Rajapaksa (‘Pohottuwa’ party) loyalists to court. This is for causing inter alia, ‘public disaffection’ and ‘promoting feelings of ill-will and hostility between different classes of people’ on the basis of sharing/circulating misleading social media posts of celebrations of ‘Maaveerar Naal’ (Great Heroes) Day in the North last month which were argued by the Criminal Investigation Department (CID) to be variously uploads of old events or events held overseas.

The CID maintained that these posts were being used to whip up communal hatred within Sri Lanka. On the other hand, the suspects pleaded that, in fact, events of that nature had taken place along with the displaying of the flag of the proscribed Liberation Tigers of Tamil Eelam (LTTE). That led to the magistrate engaging in a quotable quote of ‘not to kill the messenger,’ remarking adversely that the individuals who made the initial uploads of the false posts as well as those who celebrated a proscribed organisation should be investigated and arrested first.

The magisterial reaction thereto was pounced upon by the media with glee. The ensuing media circus was like manna from heaven to ‘Pohottuwa’ party members who held forth on the right of citizens to practice freedom of speech and expression in a particularly satirical turn of events. In short, more controversy was ignited than if the arrests had not been made. This is a precise instance of what should not have come about in the first place. Why use bad or out-dated laws that have formed part of the anti-rights coercive state superstructure used against the majority and minorities alike  and then argue that, until these laws are replaced, ‘we will continue to use them’?

Using colonial-era laws is not ‘system change’

To reiterate, the NPP Government’s shot over the bow (as it were) is to convey the message that it is not shy of using obnoxious hate speech provisions. The JVP has been a victim of the long critiqued PTA as well as archaic colonial era penal law provisions. Cases where JVP activists have challenged the use of Section 120 of the Penal Code as an infringement of their rights litter our case law and judicial precedent.

Many of these instances relate to police abuse against party political activities that the JVP had argued were perfectly legitimate. Section 120 of the Penal Code is a colonial-era hangover, prohibiting words ‘either spoken or intended to be read,’ or ‘signs’ or ‘visible representations or otherwise that excites or attempts to excite feelings of disaffection to the President of the Government of the Republic.’ Also prohibited is ‘exciting or attempting to excite hatred to or contempt of the administration of justice.’

Raising ‘discontent or disaffection’ by promoting feelings of ill-will and hostility is a pivotal part of that Section despite these terms being completely out of step with modern laws relating to the regulation of hate speech. Unfortunately Section 120 was not repealed when other sections on criminal defamation and sedition in the Penal Code were done away with by Sri Lanka in 2002, setting a precedent in the Commonwealth.

Strategically treading the corridors of power

In the cases taken to the Supreme Court on the basis that the penal law (Section 120) and the PTA violates fundamental rights, the Court has held that arrest is justifiable only if a person by his/her speech or writing persuades others to violate existing law or to overthrow the Government or incite violence. On that standard, it is immediately clear that the recent arrests of individuals sharing posts on ‘Maaraveer Day’ were ill-judged to say the least.

So as the fledgling JVP/NPP administration finds its way around the tortuous labyrinth of Sri Lanka’s political and public corridors, it must tread strategically. Even if the Government is sincere about its intent to prevent communal ill harmony, the road to hell is paved with good intentions.

Above all, it must beware that the ‘system change’ it promised does not result in its own absorption into a coercive State that it was once a victim of.