Of the legal process and public accountability

by Kishali Pinto Jayawardene

(September 04, Colombo, Sri Lanka Guardian) There is an unbearably laconic flavour to the way in which this Government treats Sri Lanka’s Constitution, the law and mandatory legal conditions. In recent days, this unhappy fact has been emphasized even more obviously than in the past.

Disturbing assertions regarding due process

To be quite clear, we are focusing not even on substance but simply on due process. One example stands out, with all its disquieting implications. Despite the validity of the Emergency Regulations lapsing at the end of the month, proposed regulations under the Prevention of Terrorism Act, No 49 of 1979 (as amended) dealing with, among other matters, the continuance of the High Security Zones, were not gazetted even up to the end of the week. Reportedly, the Attorney General had stated that the regulations were in force from the day that they ‘were announced by the government’ and that a ‘delay in printing’ does not really affect their validity, (see Daily Mirror of September 3, 2011).

The indisputably indecent hurry in which the Emergency Regulations were allowed to lapse this time around and the inability of the government to get its legal act together since then, speaks more loudly than anything else to strong external political factors influencing the President’s announcement some weeks back.

These are, however, quite disturbing assertions. Section 27 of the PTA under which relevant regulations may be made by the Minister states explicitly that ‘every regulation made by the Minister shall be published in the Gazette and shall come into operation on the date of such publication or on such later date as may be specified in the regulations.’ A subsequent section provides for the regulation, once gazetted, to be brought before Parliament as soon as it may be convenient.

No doubt, the government’s explanation would be that official acts are presumed to be done and that the gazetting of the regulations is a procedural step, with the delay not affecting the vires or the legality of the regulations themselves. But this is a highly dubious argument when the statute itself specifies that the date of publication in the Gazette (or a specified later date), shall be the date of the coming into operation of the regulations.

A question of public accountability

So, in other words, should we expect to have regulations printed within the next days or weeks (or perhaps as one cynic suggested, after the sessions of the United Nations Human Rights Council in Geneva conclude) which will specify the date of operation virtually retrospectively to the actual date of publication? Why do we not resign ourselves to not having the regulations printed and/or gazetted at all and repeal that provision of the law which imposes even this barest minimal check based on the right to public information? We can then rest on various statements by government ministers holding forth quite outside their ministerial portfolios, never mind the fact that these statements are oftentimes contradicted not only by each other but also by what we hear from the state law office? That may well be far more honest than the ambiguity that we experience now.

Intricate legal arguments may be tossed back and forth as to whether the gazetting is a mandatory precondition to the validity of the regulations. But the most powerful argument that militates against this laconic bypassing of a particular legal process draws its force from the concept of public accountability. Disregarding of due process cuts away at the very base of the government’s own contention, namely that the Emergency Regulations were lifted in order to encourage greater transparency and assist Sri Lanka’s transition from an emergency law regime to a rule of law system. Is the making of shadowy regulations under the PTA, the ideal way to go about promoting this objective? Indeed, we are told that the regulations have been completed but on whose word should we rely for this in the absence of firm documentation? This is a ludicrous state of affairs which cannot be met by an airy waving of hands to the effect that an announcement from the government would suffice, much like the King’s pronouncements of old which were announced to the unwashed masses by a frenzied beating of drums on the streets.

Moreover, the ambiguity which we see now will be equally applicable to future regulations which this government, in all its considerable magnificence, may see fit to bring in, whenever it thinks fit.

Unmasking the real truth behind the ceasing of emergency regulations

As we lapse further and further into legal disarray, the opposition is in equal disarray. The UNP appears to be so embroiled in its bitter internal wrangles that it has failed to respond on questions of crucial import. To give the proverbial devils their due, it was the TNA and the JVP which first raised the cry regarding a legal vacuum. Never mind the fact that these parties are beleaguered by their own histories of complicity or direct participation in the violence that Sri Lanka had to undergo for the past decades. For that matter, no political party in power can be invulnerable on the score of political violence. Regulations under the emergency in previous decades were known for their shadowy nature where the public was privileged to know only much later as to under what legal rule they were being governed. Let us however abstain from throwing useless stones at the past sins of political parties and look at currently relevant issues of legal process and public accountability.

The indisputably indecent hurry in which the Emergency Regulations were allowed to lapse this time around and the inability of the government to get its legal act together since then, speaks more loudly than anything else to strong external political factors influencing the President’s announcement some weeks back. Loud protestations that this was a move not due to external forces but solely compelled by the government’s desire to prune down emergency law, sounds more and more unconvincing day by day, given the chaotic situation in which we now find ourselves.

Compromises that could have been sought

In the preceding weeks dominated by these discussions, the choice given to the public by many commentators was between repeal of the PTA and it being kept in force. This choice however, is unnecessarily stark. Purists may no doubt like to argue that the PTA should be repealed. But the government need not accept this argument in toto or by doing so, need not get necessarily caught in the trap of their own making that anti-terrorism laws are not now needed as Sri Lanka is at peace.

Instead, it can demonstrate its commitment to a real change in the status quo by giving a guarantee that, except in the most exceptional of circumstances, arrests, detentions and actions affecting the freedoms of expression, publication, assembly and movement will be under the ordinary law. This would then debar confessions made to senior police officers and bring us back to a pre-emergency state of the law in important other respects.

This needs to be accompanied by a demilitarization of the police, accountability in police command structures and a delinking of political authority from police authority. Without these measures, doing away with Emergency Regulations while keeping the PTA in force with the very real threat that it holds out to dissenters, is hollow. Similarly, as observed in these column spaces last week, the government could have taken the public into its confidence regarding the nature of remaining security threats and then imposed regulations proportionate to the threats as reasonably assessed. It has not done so.

The bona fides of the government

Some may contend that asking for guarantees from an administration whose bona fides is lamentably suspect, may be limited to theory. However, the practical reality of such guarantees, if given as a revised state policy, may then be easily tested against the reality of continuing state actions to indicate its genuineness or the lack of it. These are compromise measures and strategies that may have been resorted to if this government really intended to change the status quo. Such change should have occurred importantly not as a tactical move to ward off regional or international scrutiny at a given time, as appears to be unfortunately the case, but for the benefit of this country’s inhabitants, majority and minorities alike.

If benefitting the people had been the real reason behind the lapsing of the Emergency Regulations, we would not have seen this unfortunate confusion worse compounded by evident hypocrisy in replacing regulations under the PSO with regulations under the PTA which are not even gazetted, at a minimum, up to date. Certainly however, the current state of chaotic affairs only makes nonsense of the argument proudly touted by some that the state of emergency has been lifted.