Sri Lanka: Why is Govt extending emergency when there is no emergency situation?

by Namini Wijedasa - President Mahinda Rajapaksa has summoned parliament on Tuesday - a month after its dissolution - to allow for the extension of the state of emergency.

The president was acting well within the ambit of the constitution which states that he may summon parliament after dissolution if he is satisfied that “an emergency has arisen of such a nature that an earlier meeting of Parliament is necessary”. Parliament shall stand dissolved upon the termination of the emergency or the conclusion of the general election, whichever is earlier.

While the president is within his constitutional right (he is not always so), one question begs answering: With the LTTE defeated and the government otherwise keen to emphasise that normalcy has returned to the country, why do we need the state of emergency extended?

“Will the opposition have the courage to raise this fundamental question when parliament meets on March 9?” asked Rohan Edrisinha, who lectures in constitutional law at the Faculty of Law in the University of Colombo.

“Another question is whether all the members of the government who are now coming up for re-election believe that a state of emergency is necessary.

Also, is it desirable and appropriate to conduct an election campaign and an election under the state of emergency with all the draconian emergency regulations in place that are sometimes used to stifle legitimate democratic activity?”

Lifting emergency

In an interview conducted with this newspaper in December, Defence Secretary Gotabaya Rajapaksa said there were “a lot of implications in straightaway lifting emergency”. “It can’t be lifted just like that,” he said, “because we are keeping certain detainees through that.”

But the state of emergency is not limited merely to the holding of detainees who should — and can — by now be dealt under normal law. For instance, would the Prevention of Terrorism Act not suffice? The emergency impinges on a host of civil liberties for which there does not appear to be a plausible excuse.

As observed in ‘Emergency Law 5: An Annotated List of Emergency Regulations’ published recently by The Nadesan Centre, legal basis that enables the president to make emergency regulations is found in the Public Security Ordinance (PSO) and in Articles 76 and 155 of the constitution.

This regulation-making power bypasses the normal legislative process which is parliament. Before the president can make emergency regulations, he must gazette a proclamation which in common parlance is called the declaration of a state of emergency.

Part II of the PSO provides that a proclamation may be made where, “in view of the existence or imminence of a state of public emergency the President is of opinion that it is expedient so to do in the interests of public security and the preservation of public order or for the maintenance of supplies and services essential to the life of the community”.

Once this is in operation, the president is empowered to make regulations “as appear to him to be necessary or expedient in the interests of public security and the preservation of public order and the suppression of mutiny, riot or civil commotion, or for the maintenance of supplies and services essential to the life of the community”.

It is difficult to imagine that the prevailing situation in Sri Lanka warrants the use of emergency regulations to deal with matters for which a host of ordinary laws would suffice.

As ‘Emergency Law 5’ points out, emergency regulations have the legal effect of overriding or amending all laws except the provisions of the constitution. However, the constitution permits emergency regulations to restrict certain constitutional provisions - that is, fundamental rights - in specified circumstances.

The question is, do ‘circumstances’ still prevail that warrant the derogation of something as vital as a citizen’s fundamental rights?

There are also constitutional guarantees which cannot be restricted under any circumstances, and these are those protecting freedom of thought, conscience and religion; freedom from torture or cruel, inhuman or degrading treatment or punishment; the right to a fair trial; the prohibition of punishment by way of death or imprisonment except by an order of a competent court; and the right to a remedy for the violation of a fundamental right by executive or administrative action.

Dealings

Is the emergency being extended because the government needs the security of extraordinary powers to deal with ordinary situations?

Is it being renewed so the state can arrest and detain people at will, often without reason, as it has done in the recent past?

Is it being done to give the government an advantage over opposition parties at the next election?

On the one hand, the state is on a massive drive to convince tourists to visit a Sri Lanka that is totally free of terrorism, of the violence and the turmoil of the past 30 years. On the other hand, the president feels there is a situation so urgent in this country that it requires the state of emergency to be extended; a status quo so chaotic that normal laws are not sufficient to deal with it.

It is not only civil rights that this impinges on; the negative psychological impact of an emergency being extended when there is clearly no emergency cannot be understated.

The emergency regulations...

What emergency regulations may be detrimental to the conduct of a free and fair election campaign and, thereafter, of a clean election?

Here are a few:

—Regulation 13 of the Emergency (Miscellaneous Provisions and Powers) Regulation No.1 of 2005 published in Gazette Extraordinary No. 1405/14 of 13.08.2005 (EMPPR) - Empowers the President inter alia to prohibit the holding of any procession or meeting in any area, if he is of the opinion that such procession or meeting is likely to cause a disturbance of public order or promote disaffection.

—Regulation 15 of the EMPPR - Empowers the President to appoint a ‘Competent Authority’ who may, inter alia, exercise pre-censorship of publications which might be prejudicial, inter alia, to the preservation of public order

—Regulation 18 of the EMPPR - Empowers the Defence Secretary (includes an Additional Defence Secretary) to restrict the movement of a person including confining a person to ‘house arrest’, to prevent such person inter alia from acting in a manner prejudicial to the maintenance of public order.

—Regulation 19 of the EMPPR - Empowers the Defence Secretary (including an Additional Defence Secretary) to detain a person in executive custody (eg. police custody) to prevent such person, inter alia, from acting in a manner prejudicial to the maintenance of public order.

—Regulation 20 of the EMPPR - Empowers any public officer, member of the armed forces, or a person authorized by the President, inter alia, to arrest any person or search any premises, vehicle etc without a warrant on suspicion that such person has been concerned in the commission of an offence under any emergency regulation or that such premises vehicle etc has been used in connection with any offence under any emergency regulation.

—Regulation 27 of the EMPPR - Prohibits the affixing in a public place or distribution among the public, posters, leaflets etc, which are prejudicial to public order.

—Regulation 28 of the EMPPR - Prohibits communicating false statements likely to cause public alarm or public disorder.

—Regulation 29 of the EMPPR - Prohibits, inter alia, commenting about any matter likely, directly or indirectly, to create communal tension.

—Regulation 67(1)(b) of the EMPPR - Empowers a police officer not below the rank of Sergeant and members of the armed forces not below Corporal in the Army and Air Force, and not below Leading Seaman in the Navy, to order any person or persons on or about any public place to remove himself or themselves from that place

—Emergency (Colombo High Security Zone) Regulations No.3 of 2006 published in Gazette Extraordinary No. 1452/28 of 08.07.2006 (see Emergency Law 5: NC Ref 46) prohibits the holding of public meetings, political or otherwise, within the Zone (as described), without the prior approval of the Inspector General of Police (includes a Deputy Inspector General of Police). Comment: This would also prevent the holding of a public meeting in a private building/premises within the Zone.

—Emergency (Sri Dalada Maligawa High Security Zone) Regulations No.3 of 2007 published in Gazette Extraordinary No. 1504/10 of 04.07.2007 (see Emergency Law 5: NC Ref 102) prohibits the holding of public meetings, political or otherwise within the environs of the Sri Dalada Maligawa (as described), without the prior approval of the Inspector General of Police (includes a Deputy Inspector General of Police). Comment: This would also prevent the holding of a public meeting in a private building/premises within the environs of the Sri Dalada Maligawa.

—Emergency (Katunayake Airport High Security Zone) Regulations No.4 of 2007 published in Gazette Extraordinary No. 1504/11 of 04.07.2007 (see Emergency Law 5: NC Ref 104) prohibits the holding of public meetings, political or otherwise within the Zone (as described), without the prior approval of the Inspector General of Police (includes a Deputy Inspector General of Police). Comment: This would also prevent the holding of a public meeting in a private building/premises within the Zone

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