The decision of the Sri Lankan government to lift the Emergency Regulations (ER) has been received in good faith by many. The international community has expressed its pleasure and satisfaction. The Indian minister of external affairs, S.M. Krishna welcomed the move as an “effective step leading to genuine national reconciliation in the country” (The Hindu, August 27, 2011). But, at the same time, it has also generated a suspicion whether the act of repeal is merely an attempt “to generate good publicity for the government on the eve of the meeting of the United Nations Human Rights Council in Geneva next month” (The Telegraph, August 30, 2011). This sense of uncertainty and doubt is being strengthened by the introduction of new regulations, which would provide the basis for the operation of the Prevention of Terrorism Act (PTA), High Security Zones (HSZs) and the prosecution of LTTE cadres, etc. In addition, militarisation of the society, internalisation of emergency rules within the institutions responsible for law and order and the systemic issues which encourage authoritarian political practices other than the prevalence of PTA and Public Security Ordinance (PSO) have resulted in a permanent state of emergency.
Since 1971, Sri Lanka has been in a constant state of emergency with the exception of brief intervals. The state has demonstrated a penchant for emergency laws in responding to various kinds of crises such as communal riots, youth riots, even natural disasters and labour strikes. The excessive use of emergency regulations for a long period of time has resulted in a complex and intricate legal framework, which has, in turn, blurred the distinction between normal and emergency laws. Such an environment brews a sense of uncertainty in exercising one’s right to free speech and association.
The state of emergency or the State of Exception as Giorgio Agamben puts it, is the anomic space within the legal framework which excludes people from their political and civil rights. There have been different forms of state of exceptions in history, ranging from state of siege, state of necessity, martial law and presidential dictatorship. State of exception, which is originally meant to be an interim period during crisis situations such as war, diseases, climate disasters and economic downfalls, has resulted in an expansion of the powers of the executive to the legislative sphere, suspension of the constitution and prolongation of war time authority in peace time thus infringing on the civil life. Exception rendered by the “permanent state of emergency” (p.2) risks “the physical elimination not only of political adversaries but of entire categories of citizens who for some reason cannot be integrated into the political system” (p. 2). As a result, in instants of crises and unrest, governments use the ‘safe haven’ of exception to crack down upon dissent. Agamben further states that the creation and maintenance of a permanent state of exception is “one of the essential practices of contemporary states, including so-called democratic ones” (p. 2). It is “the dominant paradigm of politics in contemporary politics” (p. 2).
The foundation of emergency regulations in Sri Lanka is two pillared. One pillar comprises of the Public Security Ordinance (PSO) 1947, a last piece of law ratified by the British in order to suppress and control political dissent. The other is the Prevention of Terrorism Act (PTA) of 1979, a temporary measure, but which has remained in force since its enforcement. In this context, an abolition of the state of emergency without addressing its real foundation is futile. The new rules introduced, along with the relapse of emergency regulations and its various provisions, under the pretext of permitting the continuance of High Security Zones in the North, proscription of the LTTE, handling of ex-LTTE combatants detained and empowering the office of the Commissioner General of Rehabilitation (CGOR) add on to this. It is just an interim to a new era of state of emergency, which Mohan Peiris, the former Attorney General of Sri Lanka, refers to as “the Emergency Consequential Provisional Bill” (Daily Mirror, August 31, 2011).
The obscure nature of the practice of emergency leading to insecurity has had a deep impact on society. The superimposition of state security over the security of individuals in formulating national security policies has led to a disjuncture between the state and the individual, ensuing a negative bearing on the social capital in society. There is a depreciation of trust between the individuals and the state. The violent attack against the trade union action of the BOI workers who opposed the Pension Bill sheds light on the brutal nature of state force against its population. In Sri Lanka, it is taken for granted that the state employs force only against the Tamils owing to ‘othering’ which took place during the Civil War between the Government of Sri Lanka and the LTTE. The characterisation of the identity of the state after the ethnic majority, the Sinhalese, has also influenced this perception. Though the state has used force against the Sinhalese in the South several times such as in 1971, in the late 1980s and early 1990s, these events have been long forgotten. In such instances of short memory, the attack on the BOI workers came as a cruel reminder of the brutality of the state irrespective of ethnicity and religion.
If it is argued that transition from emergency to normalcy will be a gradual, step by step process, there seems to be no sign of such a transition in the Sri Lankan polity. The Executive Presidency, the mother of most of evils in Sri Lanka with its wide ambit of powers, continues to grow while slashing on transparency and accountability. Even though the original idea behind the 18th amendment was to improve accountability and enable the President to attend the parliament and participate in debates, the ad-hoc manner of its practice explains the actual ground reality.
One may presume that a state which is being socialised, internalised under emergency, which is accustomed to execute its day-to-day activities through a securitised discourse, in consequence undergoing a transformation of its identity and character, would find it difficult to survive in a state of normalcy. In such a situation, the state would have no other alternative except to maintain the environment by various overt and covert tactics and policies. Therefore, the attempt of the Sri Lankan government to replace emergency laws with another set of laws under a different name, yet meant to do the same task, is not surprising. The state of emergency is not only a particular set of laws. Removing emergency regulations while continuing with militarisation and a massive project of policing in socio-cultural arenas do not indicate a journey towards normalcy.
Amali Wedagedara is SAARC Visiting Fellow at IDSA.