Focus on Rights

Disregarding rule of law imperatives in the aftermath of the tsunami
We see currently a clear disregarding of the rule of law imperatives in the prevalent government response to the disasters occasioned by the tsunami at all levels. Critically, it is the recent presidential statement that elections would not be held for the next five years, (purportedly on the reasoning that priority ought to be given to relief and reconstruction efforts in the wake of the tsunami), which generates immediate concern.

Sri Lanka is no stranger to popular strategies of avoiding electoral governance. One of the most nefarious examples in this respect was in 1982 when the then UNP government broke rudely with constitutional and electoral practice and substituted a referendum for the general election that was then due, claiming grounds of necessity due to an alleged "naxalite plot." Then again, in 1999 we had the elections to five Provincial Councils postponed by President Chandrika Kumaratunga through Proclamation under emergency on the ground that this was necessitated by national security reasons when the actual national security risk to holding elections was minimal and the decision to postpone was, in fact, for political expediency. In this instance, (as contrasted to the non intervention of the Court in 1982), the Supreme Court took it upon itself to examine the vires of the regulations issued under the Proclamation and directed the holding of the elections in the five provinces. (see Karunatilleka and Another v. Dayananda Dissanayake, Commissioner of Elections and Others [1999 Sri.L.R. 157].

In these instances, the employing of emergency law was of special note. Quite apart from the highly problematic pattern of imposing emergency regulations that had little or no connection to the basis on which a particular proclamation had been brought into force, many regulations conferred powers on the security forces that were very much in excess of that which was demanded. The nature and content of these regulations have been well studied during the two decades or more that we have had emergency rule and constitutes a troubled precedent that we cannot afford to ignore.

It is precisely for this reason that the manner in which the Government has responded since December 26 raises cause for concern, aggravated by this week's statement by President Kumaratunga in regard to the postponement of elections. This is a serious statement for a leader of a country to make and cannot be dismissed, as some have preferred to do, merely on the basis that it is casual talk. But many other issues also contribute to this growing sense of unease as to whether a grand political plan is unfolding under cover of the tsunami which would result in serious detriment to whatever is left of democratic structures in this country.

In the first instance, it is extremely worrying that a state of emergency had been declared by presidential proclamation on January 4 but had not been announced to the public thereafter. It was by chance that the discovery was made regarding the declaration and that too, some nine days later. The explanation may well be that this mishap was due to the tremendous state of political and civil turmoil that the country found itself in at that time. However, care should be taken to see that there is no repetition of such an extraordinary state of affairs where emergency is proclaimed but the citizenry know nothing of it.

Presently, the government has stated its intention of bringing in a new law as well as emergency regulations to deal with law and order concerns resulted by the tsunami. We need to know the content of these regulations before they become law and most importantly, they need to be widely announced in all three language media when they are promulgated. The announced need is to restrain kidnapping, theft of property and looting, impose stricter controls on adoptions, claims to land ownership as well as provide for the issuance of death certificates and related matters.

Government ministers have also announced the bringing in of laws to monitor the functioning of non governmental organisations (NGO's). The latter raises yet another issue. While a strong argument could be made out in regard to the above, care must be taken that such monitoring does not defeat the functioning of genuine community based organisations and thereby disrupt what proved to be the strongest response in the immediate wake of the tsunami when the government agencies were still sleeping and international aid was a long way off.

Here again, we have an unhealthy precedent as for example, in 1993 when an emergency regulation was promulgated to deal with the Monitoring of Receipts and Disbursements of Non Governmental Organizations (see Regulations No.1 of 1993). This regulation defined non governmental organizations as organizations of a non governmental nature dependent on public contributions, grants from the government or donations from local or foreign bodies. Funeral benefit societies and cooperative societies were exempted. Registration was made compulsory if the yearly receipts of any such body exceeded Rs.50,000. Monitoring by a Government official of all receipts and disbursements were imposed if the amounts exceeded Rs. 100,000/- Sources of receipts, and particulars of persons to whom disbursements are made (including names and addresses) had to be disclosed.

At that time, perturbed by the substance of the regulation, the Civil Rights Movement (CRM) pointed out that the regulation constituted a most serious interference with the free functioning of organizations and therefore with the freedom of association and expression. The regulation infringed the right of anonymity of donors as well as the right of privacy of the recipients of disbursements (subject to reasonable existing laws such as those relating to taxation). Such regulations, it was further stated, would inhibit the provisions of services by such organizations, to the detriment of a free and democratic society. (see CRM statement dated 23rd December 1993 on emergency regulations on the monitoring of NGO's.)

This raises another important concern. If NGO's are being monitored in this manner, what about the activities of the three Task Forces who have been set up under the direction of the Presidential Secretariat in order to oversee the task of rebuilding the nation, rescue and relief and law and order? All we know of these committees is that they are tasked by confidantes of President Kumaratunga with minute public accountability. These bodies should be brought into some sort of public accountability framework without further ado.

What we need now are not beaming national leaders in photo opportunities with visiting dignitaries or (assuredly) presidential statements declaring the rolling up of the electoral map for the next five years. We need ministerial accountability and effective but compassionate disaster mitigation strategies, not empty statements by Cabinet Ministers that no one works on a Poya Day and hence no one should be held accountable for the failure to warn regarding the onset of the tsunami. Most vitally, we need serious and accountable processes of nation building that will take primary account of the vast human suffering that has taken place post December 26. Inescapably, we have yet not seen such an effort on the part of those who have been entrusted with the reins of governance nor for that matter, serious attempts in this regard by the Opposition.

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