Using a cannon to shoot a sparrow: Was Anura taken for a ride?

LET it be clear that the shocking Detention Order (DO) signed by President Anura Kumara Disanayake (AKD) to incarcerate Mohammed Rushdi (now released), a youth in his twenties under the Prevention of Terrorism Act, is purely an administrative act. Such actions are subject to the principle of proportionality thus ensuring that legal stand-ards are complied with before intruding into the rights of a person. Administrative powers are conferred with discretion to enable the authority to select the best possible action amongst the available alternatives.

- By Mass L. Usuf

In the celebrated GCHQ case Lord Diplock said, “The princi-ple of proportionality envisages that a public authority ought to maintain a sense of proportion between his particular goals and the means he employs to achieve those goals, so that his action impinges on the individual rights to the minimum extent to preserve public interest.”

Slapping a three-month deten-tion order for pasting a sticker is like using a cannon to shoot a sparrow. Inspiringly, the Supreme Court of India in Coimbatore District Central Coop Bank v. Employees Association, (2007 INSC 448), held: “ ... through the use of the doctrine of proportion-ality court would not allow administration to use a sledgehammer to crack a nut where a paring knife would suffice.”

In Amal Sudath Silva v Kodituwakku, Inspector of Police and Others [(1987) 2 Sri LR 119 at page 127], Atukorale J, said: “The petitioner may be a hard-core criminal whose tribe deserve no sympathy. But if constitu-tional guarantees are to have any meaning or value in our democratic set-up, it is essential that he be not denied the protection guaran-teed by our Constitution.”

Was the President aware?

Before signing the detention order (DO), was President AKD aware that the suspect could be arrested under other prevailing laws? If he was not aware, should not his subordi-nates have made him aware of the presence of such alterna-tives? Or, should not he have questioned, especially, as a per-son who campaigned against its abuse, “Why use the PTA?” Or, was President AKD taken for a ride in the rush of Prime Minister Modi’s visit? Or, does this reflect on the efficiency of those in authority? Or, is it the cliché ‘old wine in new bot-tle’ system of law enforcement despite, the reverberation of “clean Sri Lanka”?