Editorial

In Contempt Of The Constitution

The controversy over an article published on the Defence Ministry’s www.defence.lk website which vilified lawyers appearing on behalf of The Sunday Leader in a defamation case filed by Gotabaya Rajapakse as ‘traitors in black coats’ continues to rage.

The Bar Association of Sri Lanka (BASL) in a statement last week condemned the defence.lk article as a threat to the fundamental, democratic and constitutional right to representation and demanded that the article be removed from the website. 

So strident was the tone of the BASL’s letter that the Defence Secretary himself found it  noteworthy of a response and in a dismissive reply described the lawyers’ objections to being labeled traitors as ‘chicken hearted.’

Mr. Rajapakse maintains that the Defence Ministry website  was, like any other media institution,  free to express an opinion and accused the lawyers cited in the report of running to their ‘nanny,’ the BASL for protection. The Defence Secretary claimed that lawyers had been vilified by the media previously on countless occasions without comment from the BASL.  The Defence Secretary however has missed the point.

The defence.lk website is not an ordinary media outlet.  It is under the direct control of the Ministry of Defence and therefore represents the views of the government/ the military branch of the state. Those who are vilified on the website are effectively being threatened by the Defence Ministry and several of those criticised by the defence.lk site in the past have been threatened and attacked.

The Sunday Leader has documentary evidence which catalogues a number of instances where lawyers appearing in cases contrary to the interests of the defence establishment have been threatened and violently intimidated.   

Mr. Paranavithana, an attorney appeared on behalf of the Slave Island shanty dwellers whose homes were illegally demolished in 2008 on the orders of the Defence Ministry/Secretary.   He obtained a Stay Order against the demolitions which was faxed to the Defence Secretary.  On presenting a copy of the Stay Order to the police superintendent in charge of the demolition, Mr. Paranavithana was verbally abused by the police and subsequently followed by an unregistered white van. He later reported that uniformed policemen had arrived at his chambers with, what he believed intent to physically harass him.

Mr. J.C. Weliamuna who has appeared in a number of human rights cases against the defence establishment had his house attacked with hand grenades in September 2008.  

Attorney Amitha, a lawyer based in Negombo who also appeared in several human rights cases against the security forces particularly in the Negombo area and the lower courts received death threats and subsequently had his chambers set on fire.  

What these cases indicate is that appearing against the defence establishment can, for lawyers, carry a real threat of violence, intimidation and harassment. The threats these lawyers were subject to — typically direct intimidation from agents of the state — the police, is at the heart of the issue regarding the article posted on www.defence.lk 

When an individual is subject to criticism by the media there is no implied threat — newspapers do not have armed henchman at their disposal. The Defence Ministry in addition to being in control of, has no shortage of arms and armed men, which is why threatening language emanating from the mouthpiece of the Defence Ministry is so utterly unacceptable.  www.defence.lk is not a state owned newspaper, it is the official online portal of the Defence Ministry. 

Content that appears on the site has been approved by the Defence Ministry and it is understood that the Defence Ministry as a body condones the views expressed therein. Therefore, it is implied that the lawyers labeled ‘traitors in black coats’ are being threatened directly by the Ministry — with the approval of the Defence Secretary. He has refused to have the article removed from the site.  

In all the cases cited above, lawyers were harassed by who they believed were agents attached to the government/defence forces for representing clients/cases, the Defence Ministry found unacceptable. And the idea that lawyers are openly vilified and threatened for standing in court against the interests of a powerful figure; a relative of the President is statement to the effect that those in power in this country, feel it is no longer necessary to carry on with even the shallowest pretence of democracy. 

The right to representation — and that citizens are innocent until proven guilty — is enshrined in this country’s Constitution. Representation is an absolute right without qualifications. Velupillai Pirapaharan himself if had he been inconveniently captured alive would have had the right to a defence lawyer.  That is simply The Law. Remember, Somarama, the monk who killed S.W.R.D. Bandaranaike, was represented.

Ultimately, the adherence and the respect of the law by the rulers is what separates a democracy from dictatorship. There are regular elections in Zimbabwe, Iran and several other tyrannical states. It is the Rule of Law that separates tyrannies from democracies. Accordingly, Gotabaya Rajapakse and even his brother, derive their power from the law; the Constitution. 

That the Defence Secretary deemed it fit to endorse comments that violate the constitution to which he and his family owe so much is deeply distressing. In his letter to the BASL the Defence Secretary concludes that the public will ultimately decide who is a patriot and who is a traitor but in fact it is not the public but the courts who decide who is guilty or innocent of treachery. Publicly, using a government website to label people as traitors could be deemed to be defamatory. Something a man taking out a defamation suit should be aware of.

In a final slur, Mr. Rajapakse calls the threatened lawyers who have turned to the BASL  ‘chicken-hearted’ and accuses them of running to their ‘nanny.’ These men, as is evident from the harassment received by other lawyers face a very real threat. They are not afforded security by the armed forces nor the police.

Articles in an ordinary newspaper —  a ‘tabloid’ according to him, poses no threat to a man as mighty as the Defence Secretary. The Secretary Defence is represented in court by a lawyer. To accuse other lawyers accepted by the Supreme Court of this country as traitors and non-patriots is something the public of this country should also think about…deeply.

Someday the Defence Secretary should know he is also not going to have the cover of powerful political office and tens of thousands of armed men at his disposal.  He then would not have access to official websites either. At which stage he would think 10 times, nay, a hundred times, before daring to even endorse lawyers as being chicken-hearted.