Sri Lanka: Why Sustain The ‘State of Exception’?

By N Manoharan

Despite the formal end of ethnic war, an island-wide Emergency continues in Sri Lanka. Since August 2005, when the Emergency was re-imposed in the wake of the assassination of the then Foreign Minister Lakshman Kadirgamer, the Sri Lankan Parliament has renewed it for the 62nd time this April. The Public Security Ordinance (PSO), under which Emergency is declared, stipulates that unless the country’s Parliament votes for its renewal at least by a simple majority within a month, the Emergency will be null and void.

The principal justification given for perpetuating the ‘state of exception’ is to tackle Tiger remnants. According to the government of Sri Lanka, about 9000 LTTE cadres have surrendered, but hundreds are still prowling in various parts of the country. The government claims that they may pose threat to the security or may try to make a comeback; that they are just waiting for an appropriate opportunity. Emergency blanket, therefore, is an imperative not only to smoke them out, but also to tame them once and for all.

The major concern however, is the long-term effect of a prolonged use of Emergency. Nearly half of independent Sri Lanka has been under the Emergency rule. As a result, a culture of repression and impunity has developed among the security forces. Emergency, combined with special laws like the Prevention of Terrorism Act (PTA), has virtually paralysed the operation of the normal legal process by allowing overriding, amending or suspending any law, except the provisions of the Constitution. They are vast in scope and are frequently used for non-emergency purposes.

Offences under Emergency Regulations are also vast. They range from; to bring or attempt to bring the President, Constitution, government or the judiciary into hatred or contempt by spoken or written words or promote hatred between different groups; to publish information or comment about a proscribed organisations like the LTTE or government investigation into such an organisation, and, publication on the disposition, condition, movement or operations of the security forces or matters relating to the defence of Sri Lanka.

Under Emergency, the security forces may break and enter any premises or vehicle and search, arrest without warrant, detain and interrogate suspects and seize property, vehicle or any other article. The arrested person may be detained for 90 days, with restrictions on access, communication and other rights that ordinary prisoners are entitled to; by amending or modifying rules under the Prisons Ordinance. In the case of the death of any person by an action of the armed forces or while in their custody, the DIG has the power to deny access to the dead body to relatives and order cremation or burial.

Despite overriding powers and encroachments on the normal legal process, the Parliament lacks power to scrutinise Emergency regulations to ensure that they are necessary and reasonable. At the maximum, the legislature has power only to extend the period of Emergency. Most importantly, the President’s decision to declare a state of Emergency or its continuation cannot be called into question before any court of law. Thus, the judiciary is kept at an arm’s length. It is for these reasons that Emergency regulations in Sri Lanka are time and again been criticized as falling far below internationally accepted standards.

At this juncture when the process of ethnic and political reconciliation is going on, legislation like Emergency is a major impediment. At the same time, sweeping reforms are required in the way an Emergency is invoked and implemented. The onus of this lies with both the President and the new Parliament. The PSO should be amended to include basic safeguards. They could range from communication on the arrest of a person to his relatives, production of those arrested before the courts within 24 hours, non-admission of confession made under duress as evidence, institution of checks and balances on the use of special laws by empowering bodies like the Human Rights Commission, incorporating judicial and parliamentary scrutiny, and mandatory periodic review of the Regulations, at least once in five or ten years. They must confirm to the international standards and commitments made by the island state on the human rights front. As long as the ‘state of exception’ continues, the ‘state of peace’ will be an elusive commodity.

N Manoharan is a Senior Fellow for CLAWS and may be reached at [email protected]. This article was published by Institute   of Peace & Conflict  Studies (IPCS) .