Columns - Political Column

Lapses in lifting of Emergency

  • Confusion over new laws amidst mystery of the missing Gazette
  • Attempt to placate international community but US and India maintain pressure
By Our Political Editor

A five-year long state of emergency, which saw the military defeat of Tiger guerrillas, ended midnight Tuesday closing a historic and sometimes controversial chapter in the country's history. However, another began at the same time heralding a new era where new laws replaced key provisions that were rescinded. In reality, most provisions in force under a state of emergency continue to remain under different laws.

One such provision, easily the most visible, is the deployment of troops - Army, Navy and Air Force - with full powers, like the Police, to conduct searches and arrests. In the case of the Army and Air Force, it will apply to those above the rank of Sergeants and in the Navy for those above Petty Officers. Under normal laws, such powers are conferred only on the Police. In the light of this, military checkpoints that are now positioned in parts of the city and principal towns will continue to remain. So will the practice of setting up impromptu checkpoints in the City of Colombo.

Despite the lapse of the state of emergency, the deployment of troops has been made possible by an Order by President Mahinda Rajapaksa printed in a Gazette Extraordinary dated August 6. It states "By virtue of the powers vested in me by Section 12 of the Public Security Ordinance (Chapter 40), I Mahinda Rajapaksa, do by this order call out all the members of the Armed Forces specified in the First Schedule hereto, for the maintenance of public order in the areas specified in the Second Schedule hereto." A Defence Ministry official who spoke on grounds of anonymity said that this Order will remain in force "until rescinded" and does not require a state of emergency to be valid.

According to Rajapaksa's order (First Schedule), the deployment of troops will apply to all the 25 districts in the country. They are Colombo, Gampaha, Kalutara, Kandy, Matale, Nuwara Eliya, Galle, Matara, Hambantota, Jaffna (and the territorial waters adjacent to such District), Killinochchi, Mannar (and the territorial waters adjacent to such District), Vavuniya, Mullaitivu (and the territorial waters adjacent to such District), Batticaloa (and the territorial waters adjacent to such District), Ampara (and the territorial waters adjacent to such District), Trincomalee (and the territorial waters adjacent to such District), Kurunegala, Puttalam (and the territorial waters adjacent to such District), Anuradhapura, Polonnaruwa, Badulla, Moneragala, Ratnapura and Kegalle.

Armed Forces mainten public order

Rajapaksa's Order, just two days before Parliament for the last time approved his proclamation to extend the state of emergency until August 30, was made under the Public Security Ordinance Part III that deals with special powers of the President. The section dealing with 'Calling out the armed forces' (12 (1)) states "Where circumstances endangering the public security in any area have arisen or are imminent and the President is of the opinion that the police are inadequate to deal with such situation in that area, he may, by Order published in the Gazette, call out all or any of the members of all or any of the armed forces for the maintenance of public order in that area."

Although the State of Emergency has lapsed, under new regulations that were gazetted armed forces can be deployed to maintain public order

This order also confers other powers on the President. An example: Where the President considers it necessary in the public interest to do so for the maintenance of any service which, in his opinion, is essential to the life of the community, he may, by Order published in the Gazette, declare that service to be an essential service. This provision is aimed at dealing with any strikes or other forms of trade union action that may affect the working of public utilities or other services by declaring them as an "essential service." Where any service is declared by Order made to be an essential service:

(a) any person who, on the day immediately preceding the date of publication of that Order in the Gazette, was engaged or employed, or who, after that day, is engaged or employed, on any work in connexion with that service shall be guilty of an offence if he fails or refuses to attend at his place of work or employment or at such other place as may from time to time be designated by his employer or a person acting under his or her authority of his employer.

(b) Any person who, by violence to person or property, or by spoken or written threat, intimidation or insult of any kind to whomsoever addressed or by molestation of any description, or in any other manner whatsoever-

(i) Impedes, obstructs, delays or restricts the carrying on of that service, or
(ii) Compels, incites, induces or encourages any other person employed in or in connexion with the carrying on of that service to surrender or depart from his employment or
(iii) Prevents any other persons from offering or accepting employment in or in connexion with the carrying on of that service; or

(c) Any persons who, by any physical act or by any speech or writing, incites, induces or encourages any other person to commit any act shall be guilty of an offence.

In his unscheduled announcement to Parliament on August 25, President Rajapaksa said, "From the time terrorist activities ended in May 2009 until today there have been no reports of any terrorist activities, other than the imaginary "Grease Demon." During this period, through the conduct of several elections, the country moved further towards democracy. Society has accepted that these were peaceful and fair elections. Therefore in the recent past we have been removing various clauses of the Emergency Regulations and steadily bringing society to normal administration………..I would like to present to this august assembly, the proposal to do away with the Emergency Regulations for administrative activities to function democratically under the ordinary law. This is because I am satisfied there is no longer a need for extending the Emergency Regulations for the administration of the country now. Therefore I propose not to extend the Emergency Regulations."

The reasons for the countrywide deployment of troops, as explained in provisions of the special powers conferred on the President under Public Security Ordinance III, are for "circumstances endangering public security." However, the government has not explained what incidents have endangered public security warranting a countrywide deployment of troops. Nor has the country's main opposition, the United National Party (UNP), thought it fit to raise issue other than for some cursory remarks by one of its MPs, Dr. Jayalath Jayawardena. More so when the UNP is campaigning steadfastly for the October 8 polls to 23 local councils.

However, in the past several weeks, security forces have supplemented the Police in some areas to counter incidents arising from the mythical "Grease Demon" phenomenon. This is essentially a law and order problem and has raised the concerns of both serving and retired senior police officers over what they fear is a deterioration of policing standards. In most instances, the customary dialogue by Officers-in-charge of police stations with the clergy, senior citizens, leading businessmen, professionals, civil society organisations among others in their respective areas of control has broken down.

Replacing them has been politicians in the area to whom the officers are mostly obliged for their promotions and transfers. The erosion of public confidence, particularly of those who have no political connections, has forced some to become a law unto themselves as is evident during recent incidents. Troops who are understandably not trained in community-based policing like the Police, it has been found, exacerbated the situation. Needless to say that the recent incidents have created a widening chasm in relations between the public and uniformed cadres. This has taken a different turn in the east where the military has begun registering youth. They have been summoned to camps to provide their personal data.

The deployment of troops after the lapse of the emergency formed the subject of discussion at this week's politburo meeting of the Janatha Vimukthi Peramuna (JVP). Later, the party's Gampaha district parliamentarian, Vijitha Herath told the Sunday Times, "The announcement of lifting of the Emergency Regulations is a case of deceiving the public. Though the government claims the regulations have been removed, the same regulations have been introduced in a different way. Though an announcement has been made, none of the persons arrested on suspicion for terrorist activities has been released, the High Security Zones have not been withdrawn and Army checkpoints in the north remain the same. Therefore it has not brought any benefit to the public.

Four more regulations

"We have been told that four more regulations are to be introduced to replace provisions repealed in the now defunct Emergency regulations, but they have not been made public as yet. This leaves a question about those who have been detained under the Emergency Regulations. We are also opposed to any new provisions being brought in Parliament as it amounts to the same issue of suppressing the rights of the people. The Prevention of Terrorism Act too is a dangerous provision and that too should be removed. This is a clear case of misleading the public as well as the international community".

Contrary to Herath's claims, there were no plans by the government to either release Tiger guerrilla suspects now awaiting trial or dismantle the High Security Zones, particularly those in the north. The guerrilla suspects were taken into custody and the High Security Zones came into being under the lapsed emergency regulations. In addition to these two aspects, the office of the Commissioner General of Rehabilitation was also created under the emergency. Outgoing Attorney General Mohan Peiris this week confirmed the exclusive revelations in the Sunday Times that new regulations will be promulgated under the Prevention of Terrorism Act to give effect to these matters as well as some other provisions. These new regulations, a high ranking government source claimed yesterday, were promulgated dated August 30. "The President had signed the order. It was thereafter sent by then Attorney General Mohan Peiris to the Government Printer," the source claimed. Officials were busy yesterday trying to ascertain where the delay had occurred.

However, in a strange development, no copies of the Gazette notification, a public document, have been released. The worst affected by this vacuum, despite claims that the Gazette has been printed, are the state agencies like the Criminal Investigation Department (CID) and the Terrorism Investigation Division (TID) under whose purview those suspected of guerrilla activity are being held, until last Tuesday midnight under the emergency regulations. Another issue concerns the rehabilitation programmes currently carried out by the Commissioner General of Rehabilitation on one time guerrilla suspects. With the end of the emergency, both the Commissioner General and the suspects are free.

Lawyers representing those detained have sought formal clarification on the grounds under which their clients are being held since the emergency has lapsed. These agencies have not been able to explain except to say that the required regulations have been gazetted under the PTA. However, they have not been able to produce printed copies. If indeed the Gazette has been printed, why it has not been released has raised serious concerns. Here again, the main opposition UNP has remained silent. The issue of this unexplained silence has already been raised by the Tamil National Alliance (TNA) and the JVP. Unlike in the past years, the Government Printer has remained slow in providing Gazette notifications to either paid subscribers or to the Government Publications Bureau. On Friday, the Chief Government Printer, Lakshman Perera, avoided calls from media inquiring about the Gazette notification. A secretary who answered the telephone said he was not available for comment.

This PTA (Section 27 (1)) empowers the Minister of Defence to make regulations for "the purpose of carrying out or giving effect to the principles and provisions" of this Act. It requires that such regulations be published in the Gazette. Though no time limit is fixed, the PTA requires that such regulations, once Gazetted, be placed before Parliament for approval.

Hosted a dinner

Meanwhile, as revealed in the political commentary last week, the government has gone into high gear to thwart any moves by the United Nations Human Rights Council (UNHRC) in Geneva to take up issues arising out of the UN panel's report on alleged war crimes in Sri Lanka. In Colombo, the head of the Sri Lanka delegation to Geneva, Plantation Industries Minister, Mahinda Samarasinghe, delegation members Minister Nimal Siripala de Silva and Mohan Peiris, Senior Legal Advisor to the government, hosted a dinner at the Galle Face Hotel for envoys of member countries of the UNHRC. They included diplomats from Bangladesh, Cuba, China, India, Indonesia, the Maldives, Norway, Qatar, Russian Federation, Saudi Arabia, Switzerland, Thailand and the United States of America. A delegation member was to informally sound out whether Sri Lanka's case can be taken up under the Universal Periodic Review (UPR). The next cycle of the UPR is scheduled for the period 2012 to 2016, a period by which several sessions of the UNHCR would have taken place.

Minister Mahinda Samarasinghe, who is in charge of human rights leading the Sri Lankan delegation at a previous UNHRC session in Geneva. File photo

The Universal Periodic Review (UPR) is a process which involves a review of the human rights records of all 192 member states of the United Nations once every four years. According to the UN, the UPR is a State-driven process, under the auspices of the Human Rights Council, which provides the opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries and to fulfil their human rights obligations. As one of the main features of the Council, the UPR is designed to ensure equal treatment for every country when their human rights situations are assessed. The UPR was created through a UN General Assembly resolution on March 15 2006 which also established the Human Rights Council.

Knowledgeable External Affairs Ministry sources said yesterday that any move now to bring Sri Lanka under the UPR "is both too late and may turn counterproductive." The source added "our primary aim now is to use all our diplomatic strength to muster support of the UNHRC members to ward off any resolutions against Sri Lanka based on the UN panel's report or matters arising out of it."

The members of the UN Human Rights Council together with the year they will cease to be members are as follows: Angola (2013), Austria (2014), Bangladesh (2012), Belgium (2012), Benin (2014), Botswana (2014), Burkina Faso (2014), Cameroon (2012), Chile (2014), China (2012), Congo (2014), Costa Rica (2014), Cuba (2012), Czech Republic (2014), Djibouti (2012), Equador (2013), Guatemala (2013), Hungary (2012), India (2014), Indonesia (2014), Italy (2014), Jordan (2012), Kuwait (2014), Kyrgyzstan (2012), Libyan Arab Jamahiriya (2013), Malaysia (2013), Maldives (2013), Mauritania (2013), Mauritius (2012), Mexico (2012), Nigeria (2012), Norway (2012), Peru (2014), Philippines (2014), Poland (2013), Qatar (2013), Republic of Moldova (2013), Romania (2014), Russian Federation (2012), Saudi Arabia (2012), Senegal (2012), Spain (2013), Switzerland (2013), Thailand (2013), Uganda (2013), United States of America (2012) and Uruguay (2012)

The UNHRC sessions begin on September 12 and will continue till September 30. External Affairs Minister, Dr. G.L. Peiris will travel to Geneva and be there only on September 11. This is for the sole purpose of hosting a dinner and a lunch for different invitees taking part in the 18th UNHRC sessions. Thereafter, he will return to Colombo to be on hand when Robert Blake, Assistant Secretary in the State Department for South and Central Asian Affairs, arrives in Colombo on September 12 on a three-day visit. He will hold talks with President Rajapaksa, as reported last week, on two main issues.

The US handed to Sri Lanka weeks ago a draft resolution which states "Welcoming that the Government of Sri Lanka established the Lessons Learnt and Reconciliation Commission (LLRC) in order to establish the persons, groups or institutions that bear responsibility for events between February 2002 and May 2009, noting that the LLRC is due to complete its work on November 15, 2011, decides after consultation and with the consent of the country concerned to hold an interactive dialogue on this matter during its 19th sessions (UNHRC)." The US informed the government through diplomatic channels that it proposed to move the resolution at the 18th UNHRC sessions and discuss the LLRC report during its 19th sessions in March, next year.

The government in return informed US that it rejected the move since it would internationalise the Sri Lankan issue. Blake is expected to urge the government to re-consider the move. This has raised some concerns at the highest levels of the External Affairs Ministry over whether a continued refusal would see another country moving a resolution against Sri Lanka. Such concerns have been enhanced by Indian External Affairs Minister, S.M. Krishna's remarks to Lok Sabha last week that ".....Some members have raised the issue of the Report of the UN Secretary General's Panel of Experts on Accountability in Sri Lanka. India has taken note of the Report………..

"……It may be recalled that the panel was set up by the UN Secretary General with the objective of advising him on developments in Sri Lanka, particularly in the last stages of the conflict in 2009. In general, there are still questions on the report and issue has not so far come up for discussion in the formal agenda of any relevant UN inter-governmental bodies. It could come up. I will go to the United Nations in the month of September. I am sure that not only India but also many other countries are equally concerned about the human rights violations there. There are other countries which are as much worked up as India is. We certainly will in co-ordination with all the other countries which share our perceptions. Our perception is a very constructive one. We do not want to endanger our relationship with Sri Lanka……"

The second issue Blake is to raise is for government to resume talks with the Tamil National Alliance (TNA) towards addressing Tamil grievances. This is whilst a proposed Parliamentary Select Committee continues its sessions. Blake will leave for New Delhi on September 14 for a meeting of US non-ambassadorial rank officials. The move by the US, the External Affairs Ministry in Colombo believes, is to pressure the government into formulating substantive proposals in consultation with the TNA so they could even become part of the findings of the PSC. This is particularly in the light of no specific references being made to the north, the east or to any Tamil issues in the proposed terms of reference of the impending Parliamentary Select Committee.

Rajapaksa is expected to leave for New York to take part in the 66th sessions of the United Nations General Assembly which begins on September 13. Under an earlier schedule, Rajapaksa was to take time off from his New York visit to fly to Houston to meet a family member. However, those plans have been scrapped and his visit will now be confined entirely to the UN engagement. Rajapaksa is slotted to speak at the UNGA on September 23 and hence is not expected to be present at the opening sessions.
The withdrawal of the state of emergency, no doubt, was aimed at taking at least some wind off the sails of the on-going international efforts to campaign for an international investigation into alleged war crimes in Sri Lanka. It was a message to say that besides the Lessons Learnt and Reconciliation Commission, the government was consciously taking other decisions to address issues raised by the international community.

Too little, too late

If the withdrawal of the state of emergency is seen as "too little, too late" by some of Sri Lanka's critics, it has been worsened by the way it has been effected. President Rajapaksa has been bold enough to say he proposed to withdraw the state of emergency. He issued no proclamation on August 30 and the emergency, as it would be clear to even the most dim witted, has now lapsed. With that move, among other matters, the proscription of the Liberation Tigers of Tamil Eelam (LTTE), the functioning of the office of the Commissioner General of Rehabilitation (CGOR), the continued detention of more than 6,500 Tiger guerrilla suspects also lapsed.

As publicly declared by the then Attorney General, Mohan Peiris, some of the above provisions that lapsed (together with others) were to be incorporated in regulations to be made under the PTA. For Sri Lankans, as well as the world at large, it is not seen or heard to have happened. If indeed there is a Gazette notification, the government should save further embarrassment locally and abroad, by releasing the regulations. Otherwise, all its pronouncements of the withdrawal of a state of emergency would be of no avail. Like in the past, it is Sri Lanka's and the government's credibility that suffers.

That distraction would force government to do damage control than address more issues raised by the international community. For this, there is a strong need to deal with the enemy within. Unlike the case of the fuel contamination fiasco or the so called intrusion of US fighter jets into Sri Lankan airspace, the latest faux pas could be much more damaging.

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