Awaiting benefits of lifting Emergency

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The debilitation of the system of checks and balances in Sri Lanka preceded President Rajapaksa. Both the constitutions of 1972 and 1978 sought to concentrate power in the executive branch of the government. The hope was that powerful governments would be like powerful engines taking the country to heights of economic prosperity and social equity. 

by Jehan Perera

(September 06, Colombo, Sri Lanka Guardian) The State of Emergency that gave the government extraordinary powers to utilize the armed forces for maintaining public security and to restrict civil liberties has lapsed after six years. This follows President Mahinda Rajapaksa’s announcement in Parliament that from the time the war ended to now there has been no reports of terrorist type of activities. He said he was "satisfied there is no longer a need for extending the Emergency Regulations for the administration of the country now." As a result, Parliament did not renew the State of Emergency when it lapsed this month. The government received accolades from its supporters for this its democratic action and even its critics in the opposition welcomed the new development. But one week after the lifting of the Emergency, little appears to have changed on the ground.

The legal basis for the absence of change in the practices of the State of Emergency has been the extraordinary power vested in the Presidency by the constitution. The power to call out the armed forces to maintain public order is vested in the President. It appears that the government prepared itself for the lifting of the Emergency. Three weeks prior to the President’s surprise announcement in Parliament the President had issued an order on August 6 utilising his powers under the Public Security Ordinance. This enabled him to "call out the members of the armed forces for the maintenance of public order" in all 25 districts of the country and its territorial waters. Therefore the military has been empowered to continue to undertake their duties as they did under Emergency Regulations.

The easy substitution of presidential power for the power of Parliament is another indicator of the further centralization of power in the country. So long as a President is popular with the electorate the general population will be willing to trust his judgment and the decisions taken by the government he leads. But a dangerous consequence of the over-centralisation of power in the Presidency is the loss of faith in the efficacy of other institutions by the people at large. This can lead more volatile sections of the population to take matters into their own hands. The phenomenon of alleged Grease Devils and vigilante action against them is a manifestation of the breakdown of law and order. The strong military presence in the very areas in which the largest number of incidents has been reported demonstrates that military strength alone is not the answer.

LITMUS TEST

The most visible legacy of Sri Lanka’s war against terrorism was the scaling up of the size of the armed forces and their visibility in public places. The security checkpoints remain in place even today just as they did during the period of Emergency. New regulations are said to be in force, including ones that continue to keep those detained under Emergency Regulations under arrest, and the high security zones intact. Military personnel continue to stop vehicles on the roads and check on the identity of passengers. In the former war zones of the north and east there is no visible change either. The military presence is undiminished. According to news reports, all the main features of the Emergency Regulations appear to be continuing even though the Emergency has been lifted. This has given rise to the question as to what benefit has been brought to anyone by the lifting of the Emergency.

When the emergency regulations were in place, the government could use the military machinery to address the issues that were civilian in nature. As a result, humanitarian organizations and NGOs that sought to do development projects in the former war zones, found that the last word often lay with the area military commanders. There was no consistency in their decisions, with some being more flexible than others. This same variability was to be found in getting through military checkpoints and obtaining access to parts of those areas. The existence of a weak civilian administration in the former war zones of the north and east, and the domination of the military in civilian affairs there, has been marked for special reference by the very sections of the international community who will be meeting soon at the UN Human Rights Council in Geneva.

There is a belief that the State of Emergency was lifted as part of the government’s campaign to convince the international community that it was on track with the restoration of normalcy and reconciliation in the post-war context. From the time the war ended over two years and three months ago, a powerful section of the international community that comprises some of the country’s main trading and aid partners, has been urging the restoration of normal law, justice to victims and reconciliation through a political solution. The withdrawal of the state of emergency by itself would not be evidence enough that the Sri Lankan government is following such a process. In particular the restoration of civil administration to the former war zones of the North and East will be a litmus test for the government.

ERODING TRUST

It is significant that the worst reports of Grease Devils and of clashes between affected communities and the military have come mainly from areas in which the ethnic minorities predominate. As the military is composed heavily of members from the ethnic majority, this alone is an indication of future ethnic conflict. The root cause of the clashes has been lack of trust of the community in the assertions of the military that they are not involved in facilitating the activities of Grease Devils who are believed to attack women. There is even suspicion among the affected communities that these activities are deliberately undertaken to create problems so that the need for the military to restore order becomes more apparent. This breakdown of trust is also manifested in problems involving the security forces which have nothing to do with Grease Devils.

This past weekend, there was a serious clash in Dickwella in the southernmost Matara district involving Sinhalese and Muslims. The clashes are reported to have started in the aftermath of a friendly cricket game between Sinhalese and Muslim youth of the area. The end result has been the burning of Muslim-owned shops, houses and a place of worship. Several Sinhalese are reported to be hospitalized. The inaction of the police during the clashes led the government to bring in the Special Task Force of the police to restore law and order. Members of civil society groups in the area have reported that underlying the clashes are business and political rivalries which are perhaps unavoidable in any pluralistic society. They have also reported that there is a loss of confidence in the willingness and ability of the security forces to act independently to uphold law and order. This is a recipe for inducing people to take the law into their own hands. The answer is not the re-imposition of a State of Emergency or for new laws that give the armed forces more powers. What is needed is the restoration of the integrity of institutions and the diminution of over-centralised and personalized power.

The debilitation of the system of checks and balances in Sri Lanka preceded President Rajapaksa. Both the constitutions of 1972 and 1978 sought to concentrate power in the executive branch of the government. The hope was that powerful governments would be like powerful engines taking the country to heights of economic prosperity and social equity. Both of these constitutions made the positions of the judiciary and law making branches subordinate to the executive branch of government. The unanimous passage in Parliament in 2000 of the 17th Amendment to the constitution was a belated recognition of the need to ensure checks and balances to the power of the Executive. Today this constitutional amendment has been superseded on the grounds that it is impractical and unworkable. Nevertheless the principle it stood for remains valid. An effective system of checks and balances is necessary to give full meaning to the lifting of the State of Emergency.