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Withdrawal of the emergency – confusion and new regulations

”The sequence of events showed that the announcement of the withdrawal of the emergency had been done hurriedly with little time for consideration of consequential issues.”

Confusion over end of Emergency

Hours after Rajapaksa made the announcement in Parliament; however, there was widespread confusion over when the withdrawal of the state of emergency would take effect. Different media reports, both local and foreign, gave different accounts in the absence of any official explanation. In fact, an English text of Rajapaksa’s speech, important both to Sri Lankans, the local diplomatic community and those abroad, was not officially released. Sections of the government speculated that Rajapaksa may sign another proclamation extending the state of emergency from August 31 and expressly allow it to lapse on September 14. This is without reference to Parliament in the form of a resolution. Such a move, they argued, was to give the government time to present necessary legislation in Parliament to give legal effect to some of the steps taken earlier under the state of emergency. If the required legislation is passed before the deadline, the proclamation ending the emergency on September 14 would be annulled earlier, they claimed.

The sequence of events showed that the announcement of the withdrawal of the emergency had been done hurriedly with little time for consideration of consequential issues. However, it became clear by Friday that Rajapaksa will not sign any new proclamation thus allowing the emergency to end at midnight on August 30 (Tuesday). That categorical position has been intimated to foreign governments among others. With this move, questions arose over some important steps taken under the emergency. Among them were that the proscription of the Liberation Tigers of Tamil Eelam (LTTE) would be lifted, the office of the Commissioner General of Rehabilitation (CGOR) would become void, thousands of ex-combatants of the LTTE would go scot free and the High Security Zones (HSZ) around the country, would become invalid.

It was found that the introduction of legislation, even if it was on an urgent basis, would entail a period of time. Urgent legislation would have meant approval by the Cabinet, a reference to the Supreme Court and then a debate in Parliament. A way out suggested by government’s legal experts was to exercise provisions in Article 33 (f) of the Constitution. It states “…..the President shall have the power……… To do all such acts and things, not being inconsistent with the provisions of the Constitution or written law, as by international law, custom or usage he is required or authorised to do.” However, it was pointed out that former President Chandrika Bandaranaike Kumaratunga had drawn bitter criticism for resorting to this provision. Hence, the move was not favoured.

New regulations under PTA

Government’s legal experts have come up with a way out. New regulations will be introduced under the Prevention of Terrorism Act (PTA). These regulations which will come into effect from after midnight August 30 will proscribe, among other matters, the LTTE, give legal effect to the office of the Commissioner General of Rehabilitation, provide for the detention of ex-Tiger guerrilla combatants and make the High Security Zones legal. These regulations are to remain in force until a new set of laws are introduced in Parliament. There is still no decision whether these would then come as amendments to the PTA or as a separate statute. Also expected to be incorporated in the regulations is a provision that will clearly define the word “terrorism.” Emergency Regulations 2006 created the offence of engaging in “terrorism” or “acts of terrorism” (Regulations 6 and 20) and criminalizes certain activities, transactions and communications with persons or groups committing terrorist offences (Regulations 7, 8 and 9). Regulation 15 of the Emergency Regulations 2006 allows the President to appoint a person to be the “Competent Authority” for the purpose of exempting certain groups or individuals from engaging in otherwise prohibited transactions. There are no current provisions of this nature in the PTA. The PTA only defines unlawful activity which is a broad and generalized provision.

Though some of the provisions of the Emergency Regulations will cease at midnight on Tuesday, their presence in the Prevention of Terrorism Act (PTA) will still empower the authorities. One relates to specific immunity for actions taken by “Public Servant or any other person specifically authorised by the Government of Sri Lanka to take action in terms of these Regulations, provided that such person has acted in good faith and in the discharge of his official duties.” Another is the prevention of a Sri Lankan citizen from travelling abroad. Though the emergency regulations barring them are withdrawn, it could still be done through (Section 11 of the PTA). It provides for travel restrictions for a period of three months with the possibility of being extended for three months at a time up to a maximum of 18 months.

The Government is awaiting the return of Attorney General Mohan Peiris to finalise the draft legislation. He is now in Singapore appearing on behalf of the government in one of the three oil hedging cases. Last Wednesday, the Cabinet decided that Peiris be appointed as a Senior Advisor to the government on legal affairs upon his impending retirement as the country’s Attorney General on reaching the mandatory age of retirement. He will be allowed to draw the same salary he now draws as Attorney General. In addition, he will be entitled to an official vehicle and a petrol allowance. Former Chief Justice Asoka De Silva was earlier appointed Legal Advisor to the President.

Military officers and police officers exercise extensive powers in relation to vague and general offences under the PTA. Reasons for arrest need not be given. Detention is not subjected to effective judicial control. Administrative or preventive detention may be up to one year; production of the suspect before a Magistrate must be within thirty days from the date of arrest. Where arrests are made for investigation purposes under Emergency Regulations, a person must be handed over to the nearest police station within twenty-four hours. Bail in all these instances is at the discretion of the Attorney General.

Detention may be in “places of detention” authorised by the Inspector General of Police. This essentially means police stations or undisclosed detention centres. There is no right of independent access to legal counsel or medical examination. Emergency Regulations allowed the legal admissibility of confessions made to a police officer above the rank of an Assistant Superintendent of Police (ASP) and placed the burden of proving that they were not voluntarily made, on the accused.

In the post-war amendment regulation of May 2010, the interpretation of the law has changed somewhat. Preventive detention may now be permitted only up to three months and not one year. Production of such person is mandated to be before a Magistrate within thirty days and the Magistrate must also be notified of the detention of such person within seventy two hours of arrest. Emergency Regulations permitting the admissibility of confessions was repealed.

Under PTA no change in emergency regime
Yet under provisions of the PTA, there is effectively no real change in the emergency regime. Preventive detention orders (made under Section 9 of the PTA) by the Defence Secretary cannot be effectively scrutinized by a Magistrate and may extend to eighteen months with detention orders being extended three months at a time. Suspects arrested under Section 6(1) (“connected with or concerned in or reasonably suspected of being connected with or concerned in any unlawful activity”) may be detained for seventy-two hours. Thereafter, if a preventive detention order has not been made, such suspect should be taken before a Magistrate, who then compulsorily (“shall”) remand the suspect until the conclusion of the trial (Sections 7 (1) and (2) of the PTA.

Moreover, the PTA continues to allow the admissibility of confessions given to police officers above the rank of an ASP and imposes a burden on the accused to prove that the confession was not voluntary. Both the Emergency Regulations and the PTA allow for persons to be detained in irregular places of detention: that is, persons are not required to be held in a regular police station, detention centre, penal institution or prison, as would normally be the case.

President Rajapaksa’s announcement in Parliament proposing to withdraw the state of emergency comes just two weeks ahead of the meeting of the UN Human Rights Council in Geneva. Their 18th sessions are due to begin on September 13. A closer look at his speech makes clear that he has, though in brief, addressed concerns expressed by the international community with regard to the state of emergency as well as the conduct of “the humanitarian operation” or the campaign to defeat militarily the Tiger guerrillas from June 2006 to May 2009.

The government has gone into full gear to counter any possible efforts to raise the Sri Lankan issue at the UNHRC in Geneva. Sri Lanka’s diplomatic missions are being briefed. Sri Lanka’s new Ambassador to Geneva, Tamara Kunanayakam, has been told to get in touch particularly with the Latin American group of countries (who are members of the UNHRC) since she is a fluent Spanish speaker. Deputy External Affairs Minister Neomal Perera will undertake a tour of four South American countries which are members of the UNHRC to lobby their support for Sri Lanka. They are Guatemala, Mexico, Uruguay and Peru.

On Tuesday, External Affairs Minister G.L. Peiris gave a briefing on the government’s position to heads of Colombo-based diplomatic missions. If his previous position was to declare the report of the UN panel of experts on alleged war crimes in Sri Lanka illegal and assert that Sri Lanka should not be a matter for discussion at the UNHRC, this time he appealed for more time and space. The remarks came days ahead of a visit to Colombo by one of US State Department’s articulate and respected officials, a onetime Ambassador to Sri Lanka, Robert Blake. He is now Assistant Secretary for South and Central Asian Affairs and arrives in Colombo tomorrow.
from  political column, ST


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