Photo courtesy JDS
The decision of the Sri Lankan government to lift the Emergency Regulations (ER) is received in good faith by many. For example, 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). 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, Calcutta, August 30, 2011). This sense of uncertainty and doubt has being substantiated by the introduction of new regulations which would provide the basis for the operation of Prevention of Terrorism Act (PTA), High Security Zones (HSZs) and 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 practices of politics 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 very brief periods. The state has demonstrated an immense penchant towards emergency laws in responding to various kinds of crises such as communal riots, youth riots, even natural disasters and labour strikes. Excessive use of emergency regulations for a long period of time has resulted in a complex and intricate system of legal framework which has in return blurred the distinction between normal laws and emergency laws. Such an environment brews a sense of uncertainty in exercising one’s right to free speech and association.
State of emergency or the State of Exception as Giorgio Agamben puts it, is the anomic space within the legal framework which excludes us from our right to political and civil rights. There had being different forms of state of exceptions in the history, from state of siege, state of necessity, marshal law to 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 expansion of the powers of the executive to the legislative sphere, suspension of the constitution and prolongation war time authority in peace time infringing on the civil life. Exception rendered by the “permanent state of emergency” (p.2) risks “for 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 crisis and unrest, the governments use ‘safe haven’ of exception to crack down upon dissent. Agamben further states that creation and maintaining 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 the political dissent. The other is the Prevention of Terrorism Act (PTA) of 1979, a temporary measure, yet remained in force forever since its enforcement. In this context, an abolition of state of emergency without addressing its real base is futile. The new rules introduced as emergency regulations and its various provisions relapses in 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).
Obscure nature of the practice of emergency leading to insecurity has had a deep impact on the society. Superimposition of state security over the individual security 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 the society. There is a depreciation of trust among the individuals and the state. The violent attack against the trade union action of the BOI workers who opposed the Pension Bill shed light on the brutal nature of state force against its population. In Sri Lanka, it is taken for granted that the state executes force only against the Tamils owing to a series of ‘othering’ which took place during the Civil War between the Government of Sri Lanka and the LTTE. Characterisation of the identity of the state after the ethnic majority, the Sinhalese also has 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 memories are long forgotten. In such instances of short memory, BOI attacks came as a cruel reminder of the brutality of the state irrespective of ethnicity and religion.
If somebody is to say that transition from emergency to normalcy will be a gradual, step by step process, there seems no sign of such a transition from the side of 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 facilitating the President to attend the parliament and participate in debates, the ad-hoc manner of its practice can explain the actual ground reality.
One may presume that a state which has 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. 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.
 Agamben, Giorgio, (2005) State of Exception, The University of Chicago Press: Chicago and London.