The public reaction may well have been positive to this announcement because the declaration of a state of emergency would be seen as for the purpose of taking care of the people’s needs. The immediate coverage of the declaration of emergency by the international media also gave a benign explanation of dealing with food and cooking fuel shortages. However, there are wider implications to the declaration of emergency that have been identified by the opposition political parties. Leader of Opposition Sajith Premadasa said that the real objective of the government imposing an emergency was to form a dictatorial administration leading to the burial of democracy. He called on the government to reverse the gazette notification under which emergency was imposed and to activate a Consumer Security Bill. He was quoted as saying, “Emergency will not bring in COVID vaccines, and it will not contain the pandemic. It will not bring down the prices of essential goods either.”
As a country that has spent a substantial portion of its post-independence history under emergency law, there is much negative experience to draw from in anticipating the future course of events. The legal significance of a state of emergency is spelled out in Article 155 (2) of the Constitution. It states that “The power to make emergency regulations under the Public Security Ordinance or the law for the time being in force relating to public security shall include the power to make regulations having the legal effect of over-riding, amending or suspending the operation of the provisions of any law, except the provisions of the Constitution.” Laws that give more powers to the rulers are seldom withdrawn in a gracious manner. An example would be the Prevention of Terrorism Act which was brought in as a temporary law in 1979, draconian even then, but which has grown so much in scope that no government that followed has wished to withdraw it, preferring to make use of it instead to control those in opposition to them.
The repeal of the PTA has been set by the EU Parliament as a lead condition for the continuation of the European Union’s GSP Plus tariff privileges in view of its historical role in facilitating human rights violations. This law permits the security forces to arrest people on suspicion and then keep them incarcerated while they may take their own time to find the evidence that would enable the case to be taken to the judicial process. But so far the best that the government has been able to do with regard to either amending or replacing the law is to set up yet another committee to study it and make recommendations. It has also released 16 of the LTTE suspects incarcerated for a long period of time, more than ten years in some cases, but In the meantime other people continue to be arrested under it and detained without trial.
The willingness of the government to release the LTTE suspects and the appointment of committees to look into the reform of the PTA and to see if more LTTE prisoners can be released are indications that the government is taking the forthcoming UNHRC meeting seriously. However, the implications of emergency law as spelled out by the opposition and by civil society organisations are likely to lead to greater skepticism in the human rights community, both local and international, about the government’s good intentions. The Centre for Policy Alternatives (CPA) has stated that emergency regulations “should not be considered as a substitute for the normal legal regime. As such the State of Emergency should be in force only for a limited period of time.”
In recent weeks, the newly appointed Foreign Minister Prof GL Peiris has been meeting with foreign embassies in the country to explain the government’s position on issues of interest and to indicate the government’s plan for the way forward. As an expert in international and constitutional law he will be able to present the best possible case from the government’s point of view. However, he needs to be supported by positive changes on the ground. If this base support is not forthcoming, it will seem to be as if the Sri Lankan batsman will be batting on a bad wicket and bowled out in quick order. The declaration of emergency law, the appointment of military officers to oversee food and fuel distribution, and the continuing detentions without trial under the PTA will queer the pitch for champions of Sri Lanka’s democracy and human rights.
The UN Human Rights Council session will commence in Geneva next week. Sri Lanka will be in the embarrassing position of being one of a handful of countries that will be considered in depth at that session. The government is reported to have handed over a report of its significant achievements in the areas of concerns to the UNHRC. This includes the meetings that members of the government, including President Gotabaya Rajapaksa, have had with a section of civil society. This civil society group, most of them drawn from peacebuilding backgrounds, presented many issues for addressing by the government. However, the proof of the pudding is in the eating. The ideas shared and good intentions need to be actualized on the ground or else they remain mirages of things hoped for.
There seems to be a perception gap in which the government leadership does not seem to be aware of how others perceive them and their actions. A recent example would be the event that the Office on Missing Persons (OMP) organised and in which government leaders set out their thinking on the issue. This was a positive initiative on the part of the government. However, there is a need to do more and go beyond the discussion that took place that day. The issue of missing persons is an extremely sensitive and emotive one, for it concerns the loved ones of families that they feel they cannot abandon. They wish to know if their loved ones are still alive, in other words the truth. It will not suffice to pay compensation and to promise non-recurrence which is what the government is placing on offer at the present time. Paying compensation is not a substitute for those who seek closure on how the family members can deal with their grief, which has lasted for over three decades in some instances.
The issue of emergency law is another example. It was proclaimed just two weeks before the government will face its detractors in the UN Human Rights Council. It is important to have good intentions. But it is also important to see the optics of the situation, and how others might perceive it. The promulgation of emergency law needs to be withdrawn as soon as possible and other laws to deal with food and other crises in this time of Covid health crisis need to be utilized if deemed necessary. The best way to overcome the crisis is to work together with the rest of the polity, even temporarily, to solve problems together and break out of the vicious cycle in a way which one single institution within government cannot. If democratic government is practiced there will be no need to look to Geneva for its judgement.