by Luxman Aravind
There is a peculiar habit among sections of Sri Lanka’s legal and political establishment: they speak as though constitutional principles exist in a vacuum, untouched by context, history, motive, or political reality. It is a comforting fiction. It is also an intellectually dishonest one.
Former BASL President Saliya Pieris recently reiterated a familiar argument. For years, he notes, some have condemned the abuse of laws such as the PTA, the ICCPR Act and Emergency Regulations. He argues that irrespective of the individual concerned, every person is entitled to dignity, equal protection of the law and the safeguards contained within the Constitution. As a statement of legal principle, there is nothing controversial about this. Indeed, it would be difficult to find any serious constitutional lawyer who disagrees.
The problem is not the principle. The problem is the selective moral framework through which the principle is applied.
One of the greatest dangers in legal discourse is the creation of false equivalences. It is entirely possible for two situations to involve the same law and yet be fundamentally different in character. To pretend otherwise is to abandon legal analysis in favour of political sloganeering. Context is not an inconvenience to constitutional law; it is its lifeblood. As Justice Oliver Wendell Holmes famously observed, “The life of the law has not been logic; it has been experience.” Experience matters. Circumstances matter. Motives matter. Political realities matter.
Sri Lanka did not emerge from a history of ordinary political disagreements. It emerged from decades of terrorism, insurrection, political assassinations, bombings and organised violence. Whether one supported or opposed particular legal measures during those periods is almost beside the point. The reality remains that governments confronted challenges which threatened the very existence of the state itself. To compare those circumstances with the political environment of today without qualification is an exercise in historical amnesia.
The real question is not whether legal powers exist. Every state possesses coercive powers. The real question is whether those powers are being exercised for legitimate public purposes or for political ends. It is here that the present debate becomes uncomfortable.
The current Government came to power promising a new political culture. It promised transparency. It promised accountability. It promised to dismantle the entrenched practices of political victimisation which have plagued successive administrations. Yet there is a growing perception that while structural reforms are publicly celebrated, familiar methods of political intimidation continue to operate beneath the surface. The instruments may be inherited from previous governments, but their deployment increasingly appears directed towards political opponents, critics and inconvenient voices.
This is where lofty constitutional rhetoric begins to collide with political reality.
The Rule of Law is not merely about the existence of laws. It is about the impartial administration of laws. As Lord Bingham observed, “The rule of law requires that ministers and public officers exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred.” That final phrase is critical. Powers granted for one purpose cannot legitimately be transformed into instruments of political theatre. When enforcement becomes selective, legality begins to lose its moral authority.
The danger is magnified when legal commentary itself becomes selective. Certain facts are elevated. Others are quietly buried. Certain allegations are treated as sacrosanct. Others are dismissed without serious examination. Public narratives become curated rather than investigated.
One cannot discuss these issues without acknowledging the enduring problem of wolves in sheep’s clothing. In Sri Lanka, some of the loudest advocates of rights and accountability often display remarkable selectivity regarding which facts deserve scrutiny. The testimony of Hadiya, the widow of Easter Sunday attack mastermind Zahran Hashim, remains a striking example. According to widely reported accounts of her evidence, she claimed that Zahran had been contacted by a Colombo-based lawyer whose number was allegedly saved under the designation “LLB” and that Zahran subsequently travelled with this individual to Puttalam, where significant quantities of explosives were later discovered. Yet this aspect of her testimony rarely generated sustained public outrage or investigative enthusiasm. Curiously, it occupied little space within the dominant narratives surrounding the Easter attacks.
Equally revealing were the contradictions within the same testimony regarding Sara Jasmine. Hadiya reportedly stated that she had seen Sara preparing suicide belts. Yet she later suggested that she saw an individual resembling Sara after the attacks had occurred. The latter assertion became the subject of intense speculation, media attention and public fascination. The former received considerably less attention. One statement was amplified. The other was quietly overshadowed.
Such selectivity is not unique to a single investigation. It reflects a broader pathology within Sri Lankan public discourse. Facts are increasingly filtered through ideological preferences. Evidence is assessed according to political utility. Narratives are constructed around desired outcomes rather than uncomfortable truths.
In such an environment, it becomes extraordinarily difficult to accept simplistic claims that all legal controversies should be viewed through identical constitutional lenses. The state does not operate in a laboratory. It operates amidst competing political interests, conflicting evidence, disinformation, institutional rivalries and highly organised attempts to shape public perception. The notion that legal decisions occur within some pristine realm of pure constitutional objectivity is little more than a comforting illusion.
None of this excuses abuse of power. No constitutional democracy can tolerate torture, arbitrary detention or unlawful persecution. Article 11 remains absolute. Human dignity remains inviolable. But constitutional protections do not require intellectual surrender. They do not require citizens to ignore political realities that unfold before their eyes. Nor do they require the public to accept that every invocation of rights discourse is necessarily principled rather than strategic.
The more uncomfortable possibility is that some actors have mastered the language of rights while simultaneously engaging in the politics of selectivity. They cloak themselves in constitutional virtue whilst carefully choosing which abuses deserve outrage and which questions are best left unasked. That is why legal rhetoric should never be immune from scrutiny. The language of liberty can be deployed as sincerely as it can be weaponised.
As Friedrich Hayek warned, “Nothing distinguishes more clearly a free country from a country under arbitrary government than the observance of the great principles known as the Rule of Law.” Yet the Rule of Law is not protected merely by reciting constitutional provisions. It is protected by intellectual honesty. It is protected by consistency. It is protected by a willingness to confront inconvenient facts even when they disrupt preferred political narratives.
Sri Lanka has heard enough lectures about constitutional ideals. The more pressing question is who decides which facts matter, which allegations deserve investigation, which abuses merit condemnation, and which truths are quietly left in the shadows.
