Focus on Rights

It is worth asking some pertinent questions now. What has been the ultimate legacy of these two pieces of anti-terror legislation in a country where state terror and militant terror are now almost synonymous concepts? Have they helped to rein in anti state elements? The answer is that, on the contrary, rather than helping to restrain terrorism, both the PSO and the PTA have helped to create even more hardened terrorists of ordinary Tamils caught between the Liberation Tigers of Tamil Eelam (LTTE) and the State.

Enforced disappearances in Colombo and other parts of the country are now a matter of routine and have increased in recent weeks. All these years, (given the inability of state and legal structures to deal with questions of personal liberty and security), there was the real fear that Sri Lanka will face the same questions of accountability and justice if conflict starts anew in any part of the country. Now that moment is indeed thrust upon us with the most devastating effect.

The applicability of the Public Security Ordinance (PSO) and the Prevention of Terrorism Act (PTA) has again become a matter of particular interest. It is worth reminding ourselves at this point, of the particular historical context in which the PSO was passed. The perspectives emerging therein are useful for determining the immensity of the distance between the objectives for which this law was enacted and the manner in which it has been used in the country thereafter, particularly after the 1970's.

In May 1947, there were many strikes in the country and in the course of strikes there were many attempts to paralyze the food distribution, to derail trains, to dislocate the post and telegraph and to bring all rail and bus transport to a standstill. The Government was under a threat of a general strike. In that background, the Hansard relating to the State Council debate dated 10th June 1947 gives an insight to why this piece of legislation was considered necessary just before the granting of independence to Ceylon.

Then, we had Mr. Mahadeva, Minister of Home Affairs moving the Bill in the State Council and pointing out that "The recent events that have occurred in Ceylon have indicated that there have been attempts to paralyze food distribution, to derail our trains, to dislocate the post and telegraph services and to bring all rail and bus transport to a standstill. It must not be construed that these regulations are meant only for the arrest and detention of trouble makers. These are steps that have to be taken probably for the maintenance of services essential to the life of the community; that is, for the distribution of food, for the commandeering of property, and also for transport in order to maintain the distribution of food and carriage of people. In the ultimate resort it may be necessary to arrest and detain persons.'

The problems with emergency laws of this nature were however well reflected upon in the address made to parliament on this occasion by Dr. A.P de Zoysa (member of Colombo South): 'I am prepared to admit that a very sad state of affairs exist today. Instead of taking measures to prevent disorder, are we wise in passing a law of this nature? An unscrupulous Minister, and unscrupulous Prime Minister, could, in the future, make use of this very law to detain innocent people. At present our laws provide for emergencies. It is the Governor who has the power to act in an emergency. Why should we remove that power from the hands of the Governor and invest in a Minister? Ministers sometimes are members of political parties. They may be persons with their own prejudices and hatreds. But the Governor, in theory and in law, is placed above all that."

The State Council debated the provisions of the Bill in detail and a large number of amendments were suggested at the Committee stage. The PSO was finally enacted with a majority of 33 with 7 opposing. The arbitrary working of its provisions became very clear in the years thereafter.

In 1961, the then government in power declared a state of emergency to control the activities of the Federal Party in the North of the country. The state of emergency, which was declared on the 17th of April 1961, continued even after agitation by the Tamil parties in the North had been controlled. At that time, the opposition parties alleged that emergency powers were being continued by the Government even after the Northern unrest was quelled, in order to curb various protests by the people protesting against harsh measures introduced in the budget.

The aborted coup of 27th of January 1962 took place in this background. The alleged conspirators of the coup were arrested and detained and the investigations carried out under a state of emergency during which the infamous Criminal Justice (Special Provisions) Act was passed in both houses of Parliament. This Act was then ruthlessly used to quell all opposition to the government. Sri Lanka saw a resurgence of emergency law in March 1971, immediately prior to the April youth insurrection of the Janatha Vimukthi Peramuna. (JVP) The right to conduct public meetings was restricted, press censorship was imposed and rights to assembly and association of trade unions severely affected. After the insurrection, about fourteen thousand people were arrested in the most severe manifestation of emergency rule since independence, which, however foreshadowed far worse emergency rule in the years to come.

However, the wholesale utilisation of the PSO together with the Prevention of Terrorism Act (PTA) took place particularly after 1978 in a manner that is now of historical record. Various amendments passed to the PSO in the succeeding decades conferred even greater powers on the executive regarding the declaration of a state of emergency. Though the enactment of the Second Republican Constitution in 1978 emphasised some constitutional safeguards with regard to the operation of the PSO as contrasted to the past, by stipulating specific Parliamentary control over a Proclamation of a State of Emergency, these safeguards soon proved to be illusionary with the emergency debates in Parliament becoming mechanical exercises. Attempts made the courts to restrict the provisions of these laws also acted only as a temporary fetter in the absence of will on the part of the government to change the context of their applicability.

It is time that a sensible review is engaged in of these two laws which is indeed a priority urged by human rights activists for years. Along with changes in the laws, effective investigation and prosecution of perpetrators are also needed. An independent investigative body had been recommended in its 1999 report by United Nations Working Group on Enforced or Involuntary Disappearances in 1999 but has yet not been put into place. Currently, though thousands of disappearances have been recorded in the past, an astounding figure of only nine cases have been taken to a successful conclusion in courts. Sri Lanka needs to see enforced disappearances to be prohibited both as a crime and by way of a constitutional bar.

There is also an urgent need to develop an effective witness protection system. In recognition of this need, in its Concluding Observations dated November 2003, the United Nations Human Rights Committee stated that, "The authorities should diligently enquire into all cases of suspected intimidation of witnesses and establish a witness protection program in order to put an end to the climate of fear that plagues the investigation and prosecution of such cases".

These are all recommendations from domestic and international human rights monitors that have been long standing for decades. Now, as the country faces a resumed war, putting into place a framework wherein emergency laws are not used to terrorise ordinary persons is not a luxury any more; rather, it is an absolute priority.