Colombo, Constitutional Reform, Human Rights, Peace and Conflict, Politics and Governance, Post-War, Prevention of Terrorism Act (PTA)

Who Guards the Guards? – The Need to Move Swiftly on Removing the ER/PTA from the Sri Lankan Constitution

A year after the defeat of the LTTE the Sri Lankan government announced that it will be relaxing some of the Emergency Regulations (ER) that have been in place during the conflict. This is a welcome move by the government. However, there are signals from the government that the ER and the Prevention of Terrorism Act (PTA) will continue in some form or the other. There is little doubt that both the PTA and ER have significantly improved the physical security of Sri Lankans in the past and continue to be a mechanism where law enforcement agencies help reduce the threat level. There is also evidence that there is a threat posed by LTTE elements here and abroad to the national security of the country. However, it is hoped that the ER and the PTA will be removed from usage as soon as possible. Sri Lanka will have to come up with more innovative security measures in the future, that cannot be used as political tools of suppression for personal gain, and do not infringe upon the rights of the citizenry. As a nation we have to strike a balance between liberty and security.

Terrorism remains one of the major headaches for state governments and a real danger to people everywhere. In the 21st century internal terror threats have been deemed as the single largest threat to national security of a country. The wars between states have taken a second seat to wars within states. Terrorism has also engulfed countries regardless of their level of development, geographical location or the type of governance. In South Asia, countries such as Afghanistan, Pakistan and India are racked by terrorist threats daily. It was just over an year ago when Sri Lanka’s conventional war over terrorism came to an end. There are many who will rightly argue that this threat remains to this very day, while others will point out that the risk of terrorism in Sri Lanka is the thing of the past.

Sri Lanka’s success in effectively wiping out the threat posed by terrorist elements can be attributed to many factors. The political leadership and the military forces were instrumental in destroying the terror posed to Sri Lanka’s sovereignty by the LTTE. So was the international community’s tacit approval and aiding of the military offensive against the LTTE; the ERs that are in place also aided in intelligence gathering and in the apprehension of LTTE suspects who would have posed a grave security threat to the country.  Thus, all factors aided in government’s triumph over the LTTE.

Sri Lanka’s two sets of emergency powers are the emergency regulations issued under the Public Security Ordinance (PSO), No. 25 of 1947, and the 1979 Prevention of Terrorism Act (Temporary Provisions) (PTA). Both the PSO and PTA exploit the constitution’s provisions for derogation and weaken the protection of rights significantly, thereby helping law enforcement agencies deal with significant security threats to the country and its citizens. The ER that is currently in place has been a product of the PSO. The reasoning behind these ERs is that they are necessary at times of turbulence for the protection of the larger citizenry from actors who wish to bring about disruption and carnage against both the population and the state.

The current level of security that we enjoy as citizens may also be attributed to ER/PTA that are in place. There are currently more than 11,000 suspected LTTE cadres being held in custody under these regulations, who may or may not pose a threat to national security of the country. Thus, their continuous detention may in fact guarantee a certain degree of security for the wider population. However, under the same regulation these individuals are robbed of due process under the law which otherwise would be guaranteed to them. Thus, one could argue that the collective utility of the population at large has outweighed the utility of 11,000 in detention.

Sri Lanka is not alone in the use of such laws in beefing up security. There are cases of ER being used by other countries to combat such threats. The release of individuals who were held under ERs have at times led to serious security issues for the countries concerned. One such prominent case is the Mullah Abdul Qayyum Zakir, a former Guantánamo detainee, who is now after his release considered being the day-to-day leader of the Afghanistan. If Mullah Abdul Qayyum Zakir was still behind bars, the security situation in Afghanistan would have been better. In India, Maintenance of Internal Security Act (MISA), that was passed during the Indira Ghandi government, was used to crush both the militants and the government opposition. MISA, much like the ER/PTA here, gave the Indian government powers to indefinite “preventive” detention of individuals, search and seizure of property without warrants, and wiretapping, in the quelling of civil and political disorder in India as well as countering foreign-inspired sabotage, terrorism, subterfuge and threats to national security. Due to the draconian and severely undemocratic nature of the law, the post-Indhira Gandhi government removed it from the Indian constitution. However, MISA as been replaced by legislation that includes the Terrorism and Disruptive Activities (Prevention) Act and the Prevention of Terrorism Act in the face of imminent threats to India’s security.

In Sri Lanka, much like in the Indian experience in the 1970’s under MISA, consecutive governments have used the ER/PTA for intimidating the opposition. It would be naïve to think that the ER/PTA was used solely for the purpose of combating terrorist threats. There have been numerous instances where opposing forces to the government have been targeted using the ER/PTA regulations. What is surprising, however, is the fact while the opposition parties have been targets of actions derived from emergency regulations, they have done very little to do away with it while they were in power. We often forget that the current opposition which is now objecting to ER/PTA were in fact the architects of the legislation. During the mid 1980’s the then government used the ER/PTA to crush political dissent in a way which is unparalleled in our history.

The government of Sri Lanka, much like any other elected government, has the right to use force – we may say that this ‘legitimate violence’ is used to maintain the state’s laws, and the state claims a monopoly upon the use of such violence, excluding all others from using violence. The use of state violence to protect the state is as old as the state itself and ‘violence’ or coercion is an integral part governance. The use of the carrot and the stick approach in internal politics is understood to be necessary.

Thus, in essence, the violence committed by the state either directly when crushing the LTTE or by detaining possible terror subjects is ‘legitimate’. However, even when the state may use such heavy handed tactics, it is expected to do so in a responsible manner, since those at the receiving end of such force are Sri Lankan citizens themselves. Furthermore, if the state uses the emergency regulations against individuals who pose a political threat, the state will be functioning within the letter of the law and not in the spirit of it. Thus, as Sri Lankans we have to carefully consider – how far are we willing to go in choosing to sacrifice liberty in the pursuit of security?

Works such as Michel Ignatieff’s ‘The Lesser Evil’ have argued that terrorism is in fact a product of democracy. Ignatieff writes, “Terrorism is a violent form of politics, and it is because terrorism is political that it is dangerous … Terrorism, therefore, is not merely an external threat to democratic politics but intrinsic to it”. Different states in the world experience terrorism due to a variety of issues; in the case of Sri Lanka, the rise of the Tamil militarism can largely be attributed to the democratic political process and its inability to accommodate minority interests. The 1956 Sinhala Only law personifies the majoritarian policies that were adopted by governments that antagonized the Tamil speaking minority. However, we have not for a moment thrown out ‘democracy’ stating it is to blame. We as people have sought from the democratic process the answers to the problems of the land. Sri Lankans quite rightly have not given up on democracy.

Stringent laws that infringe on personal liberties/rights of citizens have resulted in the breakdown of democracy. Democracy with all its follies is unarguably the best form of governance that treats all citizens as equals. To envision a government in any other form is to roll back on the process of democratic governance that we have in our country today. I believe that many of our countries’ leaders have done what they firmly thought was in the best interest of the country. The ER/PTA may at times have been used under such good intentions by individuals against others that have led to unimaginable personal horrors.

Professor Partha Ghosh from the Jawaharlal Nehru University, an Indian academic who proudly claims Sri Lanka to be his second home, said in response to a question by this author on whether the PTA/ER should still continue in our country:  “Not for a day any longer.  All emergency regulations have a tendency to be misused by the ruling classes.  In India they were badly misused in the 1970’s. They paralyzed the opposition there and the same may happen in Sri Lanka as well if they are not immediately lifted.  Emergency Regulations eat into the very vitals of democracy which can be both theoretically and empirically proved.”

The problems faced by Sri Lankans in the past 30 years have been caused by democracy and the answers for these issues should also be a product of democracy. Thus, steps should be taken to expedite strengthening of democracy and not weaken it.

Today, Sri Lanka is seen as one of the worst violators of human rights, though, one must observe this was not always the case in regard to Sri Lanka’s democratic history. The human rights abuses that are happening in Sri Lanka are largely a product of the ethnic conflict that has taken place and the culture of violence that has taken root in the last thirty years. Even after 30 years of brutal war, Sri Lanka continues to function as a democratic state from a constitutional stand point. However, we should not be complacent. The author Tilly points out that democratization is a process that is reversible and thus, in a constant state of flux. Countries with young democratic histories such as ours should take every step possible to secure its longevity.

The author has a BA in political science form the University of Maryland and a Masters in International Relations from the University of Queensland. The author has significant field experience in Afghanistan and Sri Lanka. The author’s articles have been published in international academic journals, newspapers and on the web. The views expressed in this paper are the views of the author’s and do not necessarily reflect the positions of any institutions they may be affiliated with.