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The National Peoples’ Power (NPP) Government continues to maintain a disquieting silence in regard to pre-election pledges, most importantly concerning the repeal of ‘all repressive laws,’ including the Prevention of Terrorism Act (PTA).

 An unwary slip of the tongue

The Government’s continued waffling on this matter only bears out what one of its officials said prior to Sri Lanka’s General Elections earlier this year, that it will not repeal PTA but will only ‘ensure that it will be used properly.’ The NPP speedily denied that assertion in the wake of acerbic public questioning as to the withdrawal of an election campaign promise by explaining that it needs to have its parliamentary numbers in the House to do all that.

Now, those numbers and more are very much on the floor of the House but the (public) silence of the NPP in regard to the PTA persists.       Earlier this month, the Supreme Court handed down yet another judgment (Azad Salley v the Attorney General and Others, decision of 12.12. 2024) which held that the arrest of a politician for ‘instigating hatred and propagating communal violence’ in 2021 violated Articles 12 (1) and 13 (1) and (2) of the Constitution.

The ruling was against the police and then Minister of Public Security utilising Sections 7 (1) and 9 (1) of the PTA, Section 3(1) of the International Covenant on Civil and Political Rights (ICCPR) and Section 120 of the Penal Code to carry out the arrest. The Court (Priyantha Fernando J writing for the Court with Amarasekera and Samyawardhena agreeing), found that no material existed to indicate a reasonable suspicion that Salley was concerned or connected with any unlawful activity at the time of arrest.

No objective or subjective standards for arrest

That was on well-established judicial precedents laying down stringent standards to justify arrest and detention. In issue were certain remarks made by Salley at a press conference several days before the arrest where he had said that, ‘in respect of personal and religious matters, Muslims in Sri Lanka should be governed by Muslim law.’ The Bench observed that when examining the transcript of the press conference, ‘there seems to be nothing to the effect that creates or instigates hatred…’

A plain reading of that transcript does not ‘objectively create a reasonable suspicion‘ of unlawful activity, it was noted. Remarks had been made by the then Minister of Public Security accusing Salley of being involved in the 2019 Easter Sunday attacks and the destruction of a Buddha statue even though the legal action taken was not on that basis. A criminal prosecution in the Magistrate’s Court had been discharged with the Magistrate pointing out that the charges were frivolous.

The filing of an indictment against Salley by the Attorney General in the High Court (under PTA and ICCPR) had also led to his acquittal with the High Court concluding that the prosecution had failed to prove that he had instigated ethnic or communal disharmony. Salley had alleged that the Minister had made calculated and malicious statements to create a false impression about him. Assessing this, the Court held that the Minister had ‘caused’ his unconstitutional arrest.

Arbitrary state practice under PTA continues

The relevant detention order in question also did not specify the material on which it had been issued other than stating that the law had been followed which did not meet the legal standard. Salley had been detained illegally without being produced before a Magistrate. This ruling is the most recent adverse assessment of state practice and policy in using the PTA. But rather than a focus on what is important, what we have are hissy fits of the Government on trivial matters.

Indeed, newly anointed Cabinet Ministers should take a leaf from the playbook of global leaders in learning how to deal with public criticism when their sensitive downy feathers are ruffled. One example is the Prime Minister blaming ‘the opposition and certain media groups affiliated thereto’ when fingers were pointed at her reportedly mixing up the ‘Republic of China’ (Taiwan) with the ‘Peoples Republic of China (PRC)’ at a recent public event.

This conjures up a memory that those familiar with this tale relate with much gusto. That was when a Cabinet Minister of some repute in the 1960’s mistakenly referred to Yugoslavia as Czechoslovakia in public. When quizzed about it, that worthy airily replied, ‘I say, is there any difference between the two? Tweedledee and Tweedledum…’ The point however is not about the ‘dee’ and the ‘dum,’ which is very much not the case where the relevant countries are/were concerned then or now.

 Taking political gaffes not too seriously

Rather, it is to caution that gaffes which are inevitable given the nature of the political space that we are in, must be dealt with sensibly as opposed to rants that see a (media) conspiracy behind every bush. These mishaps are not confined to politicians of the Sri Lankan breed either. Earlier this year, the outgoing President of the United States mixed up the Presidents of Egypt and Mexico as well as hilariously introducing the President of Ukraine as ‘President Putin.’

His incoming successor in Presidential office Donald Trump was even worse, (if that could conceivably be the case) with the media gleefully pouncing on his many verbal slip-ups. The US Presidents join a rollicking list of world leaders who made blunders in mixing up countries and leaders alike in public speeches. That list includes the Prime Minister of Israel and the former Prime Minister of the United Kingdom.

In sum, there is nothing much to get riled up about. That is other than Mr Trump who leapt on his favourite hobby horse of the ‘radical left conspiring against him.’ But the issue in seeing a conspiracy is that very soon, the line between ‘conspiracies’ (of the media or otherwise) and legitimate criticism becomes very thin. This was the very affliction that gripped the Sirisena-Wickremesinghe ‘yahapalanaya’ regime as well at the outset, we may recall.

An absurd scuffle over legal qualifications

I say this as a pungent critic of the coalition administration at the time who was often met with that regime’s loyalists invoking a lofty moral stand that its triumph in ‘getting rid of the Rajapaksas’ elevated the Government from any fault whatsoever. Well, we all know how that experiment turned out, from the Wickremesinghe Government’s two bond scams irreversibly tarnishing the image of the Central Bank of Sri Lanka to its multiple other corruption scandals later.

To put the matter in a nutshell, the sensitivity level of the new Sri Lankan political dispensation seems to be intolerably high even surpassing the ‘yahapalanaya’ administration. The continuing scuffle over the educational qualifications of NPP parliamentarians has been topped by the Justice Minister insisting that the Criminal Investigation Department (CID) inquire as to how a mistake was made by parliamentary staff in grafting a ‘doctorate’ to his bio on the website of Parliament. This was despite the relevant division admitting to the mistake in issue.

True, the NPP might be a trifle upset by the resignation of its nominee for Speaker following a dispute over his claimed academic boasts. Even so, it is grating on the ear when lawyers in Government and Opposition ranks quarrel over terminology regarding their legal qualifications and the Opposition Leader thinks it fit to relate his credentials apparently from kindergarten upwards. Such silly indulgences detract from pressing issues to be debated in the House, most importantly the repeal of the PTA and its replacement of a narrowly drafted counter-terror law.

This is not an auspicious start to a Parliament promising an elevated quality of debate, let it be said kindly.