Opposite Editorial

Emergency exit

By Laila Nasry

Political observers saw it as an unavoidable occurrence as the People's Alliance government was tottering on the brink of defeat, only to be salvaged in the eleventh hour by President Chandrika Kumaratunga.

The President promulgated regulations under the Prevention of Terrorism (Temporary Provisions) Act 48 of 1979 in a bid to "meet the requirement of the current security situation of the country." 

As some hailed the lapsing of the state of emergency as a victory for democracy and rights of civilians, many observers questioned the relative effectiveness of the new regulations to uphold national security. 

Political analysts were wondering whether there was any need for a state of emergency for such a long time to protect the sovereignty and territorial integrity of a developing country. 

They are also questioning the validity of the ban imposed on the LTTE under tough emergency regulations in February 1998. 

Although the President has proscribed the LTTE under the PTA provisions, it was not immediately known whether the proscription would have any legal effect.

"The PTA is as effective as the Emergency Regulations and almost covers 90 per cent of what could be done under the Public Security Ordinance," said H. L. De Silva who saw no difference between the two from a constitutional standpoint.

He said emergency regulations were vital for public order than national security. According to him matters considered not coming under the ambit of national security could be dealt with under the emergency regulations. 

Mr. De Silva said regulations promulgated under the state of emergency took immediate legal effect contrary to normal laws, which were subject to a long drawn out and cumbersome process in their passage through Parliament. 

"Very often the Public Security Ordinance which gives effect to Emergency Regulations is seen as an abuse of citizens' rights," Mr. De Silva said. 

However, he said, it played an important role in the facilitation of public order. Mr. de Silva said the essence of the PTA was on the banning of the LTTE. However, the Act itself did not specifically provide for it. 

Tilak Marapana who holds a different opinion says, "the proscription is a sham." He said the regulation-making power under the PTA did not extend to proscription. 

Mr. Marapana further said the proscription itself was a dead letter for it lacked stringent qualities and strict enforcement. He said, "there has never been any forfeiture of property under the PTA." He also said banning the LTTE from holding meetings, distributing leaflets, or being a member of it had no impact. 

Mr. Marapana said the promulgation of "security areas" did not have any effect. He said "with or without regulations the situation is the same." 

Colombo University law professor Rohan Edrisinghe said emergency regulations were not vital for the protection of national security. 

Mr. Edrisinghe said both the emergency regulations and the PTA were draconian laws that had come under much criticism from human rights groups and other interested parties for the sweeping powers it had given to the executive. He said the proscription of the LTTE under the PTA.

Former Supreme Court Judge K. M. P. B. Kulatunga welcomed the lapse of the emergency. He said it was a "democratic event" in keeping with "all civilian norms of conduct."

Justice Kulatunga said while there were a number of laws to handle a number of matters, unfettered powers had been vested in the executive under the emergency regulations. 

He said the government had erred in proscribing the LTTE. According to him no regulations could be promulgated for the proscription of the LTTE under the PTA. 

He said there was no principle or provision for the proscription of the LTTE under the PTA. 

The regulations pertaining to proscription is ultra vires of the PTA and in violation of the fundamental right to freedom of association." Justice Kulatunga also said the government could have resorted to other alternatives. However, he said, the government had not done so due to political reasons.

The regulations banning the LTTE

Following are the provisions of the Regulations under which a person shall be found guilty. On conviction a person shall be liable to imprisonment for a period of not less than and not exceeding fifteen years.

*Wearing any uniform, dress, symbol or other emblem, which signifies or indicates any association with, or membership of or adherence to, the proscribed organisation;

*Summons or attends any meeting of such proscribed organization or participates or engages in any activity, of or connected with, or related to, such proscribed organisation 

*Supports the proscribed organisation, by inviting or exhorting persons to be enrolled as members, contributing or collecting funds, or furnishing information or securing other assistance to such proscribed organisation

*harbours conceals or in any other manner assists any member of such proscribed organisation with intent thereby to prevent, hinder or interfere with the apprehension, trial or punishment of such member

*Makes prints, distributes or is in any way concerned in the making, printing, distribution or publication of any written or printed matter which is, or purports to be, published by or on behalf of such proscribed organization or any member thereof

*Communicates or attempts to communicate to any other person in any manner, any order, decision, declaration or exhortation made or purported to have been made by such proscribed organisation or by any member thereof, or any information relating there, for the purpose of advancing the objectives of such proscribed organisation.

The provisions also provide for taking into custody moneys, securities and any movable and immovable property to be intended to be used by any proscribed organisation.

The provisions says: 'Where the Minister is satisfied, after such inquiry as it thinks fit, that any person has custody of any monies, securities or credits which are being used or are intended to be used for the purposes of the proscribed organisation, the Minister may, by order in writing declare that such monies, securities and credits as are in the custody of such person, or any monies, securities and credits which may come into his custody after the making of such order any other movable or immovable property belonging to such organisation shall be forfeited to the State'.

The decision of the Minister under the sub section (1) shall be final and conclusive and shall not be called in question in any court by way of writ or otherwise.

For the avoidance of doubts it is declared that the provisions of these regulations will not in any way affect the right of any international organisation which is specified from time to time, by the secretary to the ministry-in-charge of the subject of defence and which has entered into an agreement with the government of Sri Lanka, to engage in any activity connected with the rendering of humanitarian assistance. 

Propaganda blitz embarass military

By our Political Editor

This week, the government bent over backwards in explaining to the people that there is a need to extend the emergency in the country.

In the face of a possible defeat in Parliament to extend the state of emergency many tricks were pulled from the hat. Among these, were state media hype that the UNP and JVP leaders were traitors and their acts treason. Dubious sources, they said, showed that the Tigers were planning a strategic operation to re-take Jaffna. A ten-minute video of aerial footage was however more substantial proof that the Tigers were indeed planning an offensive in Jaffna. Showing men running away when they heard the whir of aircraft motors. Tall radio antennae and a seven kilometer long stretch of fence were among the video footage showed that the LTTE meant business.

The military top-brass is not wavering on their conclusion. They say that the build-up is a clear indication that the LTTE is gearing for an all-out assault.

Intelligence reports quote Prabhakaran himself, saying to his faithful that Jaffna will be re-taken by September.

The high-perimeter fence, the military feel was not a worrisome factor, as it was meant to keep the LTTE operations covert, but, they confirmed that soldiers at the front reported smoke bellowing from what they thought to be an ammunition dump.

A massive "I'' shaped structure continues to baffle the military, and this particular footage taken by the UAV (Un-manned Aerial Vehicle) is thought to be a structure housing a long range artillery gun, that might be rolled out to fire on the Palaly Air base in Jaffna.

The Palaly conjecture is from experience. Last year, when the LTTE made an almost successful push for Jaffna, they were able to pound the periphery of the Palaly Air-base, which threatened to disrupt all flights cutting off supplies to the peninsula. The Air base is the key conduit on which the continued writ of the forces over the peninsula depends, as it remains the only channel for food, medicines and movement of troops.

The footage was displayed, with suitable sobriety, to the diplomats from Norway India and the United States, with Minister Lakshman Kadirgamar in attendance. The US and the Indian ambassadors watched the show, promptly went back to their offices, and sent their despatches, only to receive from the Mandarins and Brahmins in their respective Foreign Offices the registering of their "concern'' over the air strikes which were launched as pre-emptive, self-defence attacks on LTTE fortification. The peace process was apparently their overarching concern, and they felt the Air Force sorties would irrevocably damage the peace initiative.

The US statement was the less damning of the two, as it at least acknowledged that a government has the "right-to self-defence.'' It was a qualifier which prefaced the statement and gave the government at least a little hope that there is some empathy somewhere in the bad world of international realpolitik.

The Sri Lankan diplomatic temperament has been especially angered and hurt by the statement that emanated from the Indian camp. The Foreign Ministry in Colombo by Saturday had made public their response to the US and the Indians. 

Mr. Kadirgarmar for his part has been going on the public relations offensive. In a specially carefully worded interview with a "special correspondent'', the Foreign Minister goes to great lengths to explain that the airstrikes in Jaffna had no political trigger, that they were purely the reaction of a sovereign state acting in its self-defence. He also pointedly made a reference to the peace process that involves the Norwegians, and said that the airstrikes are not connected in any manner whatsoever with the peace initiatives that are being re-launched under the stewardship of a Norwegian Deputy Foreign Minister.

Meanwhile, state television last week was in the meantime creating the necessary civilian psych-ops for the airstrikes. Soldiers were shown giving interviews, and officers were urging young men to join the armed forces.

But, it was difficult to dispel the scepticism of the hysterical propaganda assault.

The timing was dreadful. In what the politicians behind the propaganda blitz to win public support mis-matched the genuine fears that the military top brass entertained due to the evidence they had in their possession- that the LTTE was preparing for war.

What those politicians do not like to admit is that their over-kill propaganda can do more bad than good for the government's credibility factor.

Even the military seemed to be embarrassed by some of the more barefaced propaganda efforts. 

This is why each time some hardwork is to put in to get the UNP and PA to take a common stand on the LTTE - the state media blows it by calling the UNP names.

Terrible scenarios were conjured up for what might happen if the emergency was lifted, and these were so laughable that the military top brass seemed instantly to distance themselves from the state propaganda blitz. But, the state agit-prop machine seemed unbowed. 

They carried reams of photographs of LTTE massacres, and said the opposition was offering succour to this diabolical group of terrorist. The way the state media put it reminded one of the beggar's wound theory when the military thought it was serious business.

Charge of jumbo brigade 

By Dilrukshi Handunnetti Our Lobby Correspondent

Despite the turbulence prevalent in the political arena, the hub of activity, the legislature last week was only a manifestation of changing gears and political retreats by the government, with the highlight of the week- the debate on the extension of emergency finally becoming a non-event with the President bypassing the House. And this just washed with a House that even failed to record a whimper of protest, irrespective of the presidential action falling within the constitutional provisions.

Enjoying a rare moment in the sun, the UNP had its daggers drawn, and when the group opted to vote against the emergency extension along with other opposition parties, the government obviously found itself in a political soup.

The PA with its customary adroitness when it comes to matters of propaganda, had given pre-publicity to the possibility of a UNP refusal to support emergency, and dedicated much airtime to explain the repercussions of an emergency lapse throughout the week. It was all about national security, a need to keep the armed forces strengthened and the UNP's neglect of public duty. 

Despite a politically explosive backdrop, the week began on Tuesday with Ferial Ashraff's resignation from the Cabinet and an errant UNP bombarding the government with questions about the efficacy of the NUA leader being recognized a minister.

With the SLMC joining opposition ranks just a fortnight ago and the possibilities of more defections from both sides looming larger than ever, the opposition legislators on Tuesday were a confused lot- their first problem being to locate their new seats. As is customary, UNP's A. H. M. Azwer who is touted as the local authority on Erskine May had much to say about Ferial's resignation.

The UNP insisted that Ms. Ashraff was no longer a minister and urged the Speaker to make a ruling on the matter during the week. Bombarded with UNP's many questions about the validity of Ms. Ashraff's position as a Cabinet member, it was up to Prime Minister Ratnasiri Wickremanayake to bail the lady out by saying that the resignation was offered but rejected.

This led to UNP's legal luminary K. N. Choksy fortifying Mr. Azwer's argument by explaining to the House that a minister could resign by writing to the President, irrespective of the acceptance or rejection of it. "Take a simple example. If an employee gives notice to the employer, can the employer compel that employee to work against his or her will? Once a written communication has been made, that stands," he explained.

But Mr. Azwer insisted that Ms. Ashraff was no minister. 

"The lady went on record that she had resigned her portfolio. Everyone knows of it, and she stands by it. This "denawa-gannawa" fiasco is not acceptable to us. We want a clear ruling," he urged.

But Mr. Azwer overstepped his boundaries when he said it was a deliberate move to mislead the House and went on to quote 

Erskine May who said ministers who mislead must resign.

With government members shrieking in protest and flinging words the UNP way, Speaker Anura Bandaranaike noted that imputing motives was unacceptable. 

"But your friend Erskine May is clear on this," Mr. Azwer pleaded, and the witty Mr. Bandaranaike shot back: " I never had the pleasure of meeting the good gentleman. I think he died about a hundred years ago," and the House, for a few moments resembled the Pettah fish market. 

The very air seemed charged on Friday, with the UNP's decision to vote against emergency pushing the government to issue a presidential proclamation to extend emergency bypassing Parliament. 

The UNP's giddiness at the hint of a baton change was the thing most apparent, when the scheduled debate on emergency was replaced by the condolence vote on M. H. M. Ashraff. 

The grave mood was missing as the re-swearing in of Ms. Ferial Ashraff just the day before had Mr. Azwer getting excited early in the morning. His contention was that a matter of privilege should be raised against the prime minister who he alleged had deliberately misled the House on the matter. Unrest grew with UNPers thumping on their desks and chorused "go home." 

Minister Batty Weerakoon tried to salvage the premier claiming there was no contradiction in taking that extra careful measure of re-swearing in of a member to avoid a constitutional breach, and jestfully quipped , "Even Erskine May misquoted could mislead us", a remark lost in the din.

The House perhaps was ready to lend ear to the prime minister who promised a parliamentary statement on national television, which was not to be. But if the government had retreated to mournful submission in the face of possible changes in its political fortunes, it certainly was not reflected in Minister D. M. Jayaratne's condolence speech which was full of loaded comments about Ferial Ashraff's political prudence.

But the showdown came just 20 minutes before adjournment. With the party leaders' meeting drawing to an end without fixing dates for the much publicized no-faith motion against the government, the UNP, now oozing with confidence sought to turn the tables on a government with dwindling numbers. 

At 11.40 a.m. UNPers trooped in from all sides as chief opposition whip W. J. M. Lokubandara called for the suspension of standing orders 19, 20(1), 20(3) and 23 (3) and the reconstitution of the selection committee.

Minister Mangala Samaraweera was seen swinging his arms in violent protest against the UNP claim, joined by some backbenchers while minister Mahinda Rajapakse sprang to the government's defence, arguing that an item, which was not on the agenda, should not be allowed.

And up jumped Mr. Lokubandara calling for a division, obviously feeling smug having all 115 opposition members supporting him, and challenging Minister Rajapaske to show his majority to overrule a call of urgent public importance. But Mr. Rajapakse protested there was no way that standing orders could be whimsically suspended by an errant opposition, and sessions were suspended for five minutes. 

The five minutes provided an opportunity for much hand flaying and mud slinging but the Speaker effectively put an end to all the drama by overruling the matter on the premise that he had not received notice, thus causing the PA to heave a sigh of momentary relief. 

With instability reigning supreme, and the vital decision to fix dates for the no-confidence motion suspended in mid air, both sides are sure to lose much sleep during the next few days- the UNP due to its eagerness to test its strength by having the no-faith motion debated and the government's reluctance to face the moment. 

And if the House does not promise political stability, it does promise heated debates and politically exciting moments.

The Fifth Column

Editorial/ Opinion Contents