No doubt, President Mahinda Rajapaksa’s announcement this week in Parliament, proposing the lifting of Emergency Regulations under the Public Security Ordinance (1947) will be greeted by (virtually) all in this country with a sigh of relief. It is still not clear when it would be done, but the suggestion alone is good enough news for the moment.
Sri Lanka has been governed by Emergency for far too long and people, especially an entire generation, have forgotten what it is like to live in a non-Emergency state. True, Emergency has been more in vogue than ordinary law in recent decades, primarily due to successive conflicts that have taken place. The brief interludes when Emergency has been removed were too short a period for the people to savour.
Contrary to popular belief, Emergency law was not utilized only from the ’70s onwards with the advent of the 1971 insurgency in the South. The Public Security Ordinance, (hurriedly passed by the then State Council on the eve of Sri Lanka’s independence to meet the threat of a general strike by leftist trade unions), had been intermittently used during the early ’60s. The examples were the Emergency laws when communal riots broke out in 1958, when the alleged conspirators in the abortive coup of 1962 were arrested and detained and later primarily to control strikes and quell the occasional flare-up, be it ethnic or student agitation.
When Governments of the day were questioned why the Army was brought out of barracks for such civilian aberrations, the answers varied from whether the soldiers were mere museum pieces, or whether they were there to ‘kos kottanna’, i.e. to make jak fruit into pulp. These responses by the powers that be are contained in old Hansards, the official record of Parliament proceedings.
Emergency Regulations were used with gusto in the 1971 armed insurgency and not eased even when that threat abated. Instead, its draconian provisions were retained. The Davasa newspaper group was sealed under its provisions, that being a textbook case of abuse of power.
It was the J.R Jayewardene Government, having witnessed the unpopularity that follows when a Government uses these extraordinary powers beyond their shelf life, which imposed a Parliamentary check on the continuance of the Emergency (however farcical this exercise may have become in later years) by making it a Constitutional requirement to have it passed every month by the Legislature.
Otherwise, once promulgated, these regulations tended to get lost in the fog of governance. The reality has been that Emergency laws have often been exercised for purposes well beyond the scope of national security and much to do with sheer political expediency.
Many regulations came into being without adequate awareness and in midnight gazettes in which they were published, not being readily available to the public. This became a common state of affairs, often condemned by the courts, but which the citizen was forced to accept as inevitable and beyond the possibility of change by power-drunk ruling parties.
Two years have lapsed since the ending of active conflict in the North and East, and by extension, in Colombo and the provinces which were not entirely immune to terrorist acts. On the eve of the United Nations Human Rights Council sessions in Geneva next month there is now some external pressure on the Government to show some peace dividend by way of relaxing these stringent regulations.
There is, though, a need for an element of caution. Even though the State of Emergency will surely lapse, the Prevention of Terrorism Act (1978) will remain in the statute books, as it must at least for the time being in the future. Arguably, it is too premature to repeal this law that was introduced in the nascent days of the Northern insurgency when the Government did not want Sri Lanka turning “into another Chicago” as the Minister introducing the law said at the time referring to when that American city was ruled by lawless elements. Sri Lanka turned into more than ‘another Chicago’ with a veritable ‘civil war’ taking hold.
This law, originally introduced on the lines of the Prevention of Terrorism Act (PTA) of Britain (brought into combat the IRA) however administers a completely separate Emergency regime which, in many respects, is as severe as the Emergency Regulations themselves. It has a life of its own almost running parallel to the Emergency Regulations.
Previously, as in 2001 for example, when the proclamation under the Public Security Ordinance was allowed to lapse in the hope that the terrorist LTTE would enter into a politically negotiated settlement, the continuation of the PTA saw little change in the Emergency regime. In July 2001, one of Sri Lanka’s leading constitutional lawyers, H.L. de Silva, P.C., pithily told this newspaper that the PTA is as effective as the Emergency Regulations and almost covers 90 per cent of what could be done under the Public Security Ordinance. Rightly, he saw no difference between the two statutes from a constitutional standpoint (see the Sunday Times of July 8, 2001).
Welcome as the Presidential announcement this week was, there are many holes to pick in it. For one, he said that there was no censorship of the media during the height of the war even though there were those who discouraged the war effort of the State. He did not, obviously mention the number of journalists threatened, beaten and killed for dissenting. Moreover, the people are also not informed as to whether the Government intends to resort to the PTA, with some amendments or to introduce amendments to the Penal Code or enact a wholly new statute incorporating some of the provisions of the Emergency Regulations that will wither away now. Will it be a case of old wine in new bottles or with different labels?
The danger of slipping in the Emergency regulations into normal laws is, of course, that even the monthly Parliamentary scrutiny, (which was enforced in the case of Emergency Regulations), will no longer be needed. It would have been comforting had the President made a reference to this aspect in his special address to Parliament.
While it is understood that the country needs to keep a watchful eye over the security of the State in the background of the devastating conflict, it must be mindful of not drifting towards a Police State and more security-related statutes if we are to rid ourselves of an ‘Emergency mindset’.
In the meantime, where is the public consultation on these consequential steps that the Government is certainly poised to take in the wake of the lifting of the Emergency Regulations? Is it not wise to apprise the public of genuine security needs and obtain public support for the measures that must be taken? This would satisfy concerns harboured by many as to whether these forthcoming measures are proportionate to the present-day needs of national security in a post-Emergency scenario.
There is a chronic democratic deficit in Sri Lanka and one swallow does not a summer make. Merely lifting the Emergency will not suffice. There are miles to go to restore the democratic state that Sri Lanka once was before it was ruled by Emergency Regulations.