OPINIONS

Balance of Forces

De-proscription must be seen in its wider context

The refusal of the Sri Lankan Government to de-proscribe the Liberation Tigers was a lost opportunity to improve the negotiating atmosphere. Muruges Arumugam argues that it would have been a simple step towards reforming the draconian laws and regulations that remain an impediment to a sustainable solution to Sri Lanka's conflict.

The de-proscription of the Liberation Tigers would have been a symbolic and relatively small measure for the Sri Lankan government to agree to, particularly given the primacy accorded to the matter by the movement.

However, the effects of the Emergency Regulations (ERs) that proscribe the LTTE are far from symbolic, and considered in the context of the substance of possible future talks, the repeal of these particular ERs is not as unreasonable as the Government would like to make out.

Further, de-proscription, though necessary, will not be sufficient if a full and frank discussion is to be possible.

The ERs under which the LTTE is proscribed are just one of many impediments to peace negotiations in Sri Lanka. Indeed, it could be argued that a genuine peace process will not be possible without significant reform of Sri Lanka's draconian public security laws that have curbed political freedoms.

The Emergency (Proscribing of LTTE) Regulations No.1 1998 were drafted by the President and came into effect when they appeared in the Government Gazette of January 1998.

This was the first time since July 1979 that the LTTE was officially proscribed in Sri Lanka and occurred in the midst of Sinhala-Buddhist fury following the bomb attack on the Dalada Maligawa which was attributed to the LTTE.

The Regulations make it illegal to, amongst other things, be a member of, wear the uniform or symbol of, attend a meeting of, and distribute material supporting the proscribed organisation. Anyone found guilty of any "offence" under these Regulations would face imprisonment of at least 7 years.

Interestingly, despite the Government's claim that the proscription relates to the LTTE's "criminal activities", the Regulations make no mention of other, more traditional criminal activities.

Presumably, anyone charged under the Regulations would also be liable for punishment under Sri Lanka's expansive criminal laws and regulations.

Therefore, the proscription adds little to the substantive "offences" for which someone can be tried. Instead, it has been designed to outlaw with threat of severe punishment any activity that relates even remotely to the LTTE.

Indeed, the panic that ensued soon after the LTTE was banned, amongst many journalists in Colombo who either received the movement's press releases or publications reflecting its views underscored the simplest impact the proscription had.

By repealing the Regulations and thus de-proscribing the LTTE, the Government would have made an important gesture towards peace and towards a political solution.

And, as the rule in question is a Regulation, it could easily be repealed by the President without Legislative approval, thus sparing her of a potentially hostile encounter with Parliament.

Yet, for all of its symbolism, the proscription has significant effects. Contrary to the Government's claim that proscription "does not in any way preclude [the LTTE] from entering into the process of negotiation with the Government", the presence of this and the other Regulations presents considerable problems.

The notion of a Government negotiating with an organisation that it doesn't even recognise is as ludicrous as the policy of waging a "war for peace". Apart from this hypocrisy, proscription has practical implications.

The continued proscription of the LTTE would mean that any member of the organisation attending peace talks would be risking arrest and at least 7 years of imprisonment.

Ironically, the same penalty could potentially apply to Government representatives in such negotiations.

While the Regulations exempt international organisations that work with the LTTE in providing humanitarian assistance, there is no such protection for domestic actors.

For example, under Section 3(b) of the relevant ERs, "any person who summons or attends a meeting of such proscribed organisation, or participates or engages in any activity, of, or connected with, or related to, such proscribed organisation shall be guilty of an offence" and liable for imprisonment for between 7 and 15 years.

If we assume that successful peace talks will require Government negotiators to "engage in" some activities "connected with" the LTTE, then can we expect the Government to arrest its own officials for discharging their duty - and imprison them for at least 7 years?

Of course, the Government can say that it will not actually enforce the Regulations but this begs the question as to why not repeal them beforehand. Far from being unreasonable as the Government insists, the call for de-proscription makes plain sense.

The issuing of new emergency regulations should not be confused with the declaration of a state of emergency as such. A state of emergency has been in force in Sri Lanka nearly continuously since 1983, coming into place before the anti-Tamil pogrom in which thousands of Tamil people were massacred and Colombo virtually cleansed of Tamil residents.

During a declared state of emergency, which has to be renewed monthly by parliament, emergency regulations come into force. They are issued by the President under the Public Security Ordinance, bypassing the normal legislative procedure.

The ER rules introduced by the President last year, confer powers of arrest to "any authorized person" in addition to the police and armed forces and considerably extend the powers to detain available to them.

The regulations also provide wide powers of censorship; provisions for prohibiting public meetings and processions; and broad provisions for proscribing organizations which the President considers to be prejudicial to national security, public order or the maintenance of essential services.

But no matter how problematic proscription is, it is not the real difficulty. Proscription is only one of many measures through which successive Sri Lankan governments have sought to limit political freedom.

Many of Sri Lanka's problems can be traced to the systematic denial of the basic rights and freedoms that are vital to the functioning of a successful democracy.

Indeed, the draconian laws still in effect under wide ranging public security provisions, of which the proscription of the LTTE is just one, are just shy of authoritarianism.

Even before the powers were extended last year, the emergency regulations which were in force already granted powers which considerably exceeded the limits permissible under the International Covenant on Civil and Political Rights (ICCPR), which Sri Lanka acceded to in 1980.

The backbone of Government legislation in this area is the Prevention of Terrorism Act (PTA), originally enacted in 1979 for a period of three years but amended and made permanent in 1982.

The Act provides for the detention for up to 18 months, without trial and without access to lawyers or relatives, of any person suspected of offences ranging from incitement of communal disharmony to the mutilation of street signs. All PTA offences, no matter how small, carry a minimum sentence of 5 years in Sri Lanka's notorious prisons.

Under a Public Security Ordinance that dates back to 1947 and Article 155 of the current Constitution, the President can declare a state of emergency under which all other laws, except the provisions of the Constitution, can be suspended.

This can be done without the consent of the legislature and is immune from judicial review. Not surprisingly, Sri Lanka has one of the worst records in the world in this regard - 28 out of the 54 years since independence, and almost all of the last 18 years, have been under a state of emergency.

ERs are orders or proclamations that are issued by the President and, once published in the Gazette, are in effect during emergencies.

They are rules not laws passed by a Parliament and, though they are supposed to be temporary, they are in fact almost permanent in the Sri Lankan context.

The effect of these laws and regulations have been to curb any political expression that is deemed by the Government of the day to threaten its position.

A quick glance at the Sri Lankan Gazette reveals that the list of ERs is almost endless. The most important heads under which ERs are drafted are the Miscellaneous Provisions & Powers, Maintenance of Essential Supplies & Services, and the Prevention of Subversive Political Activity. Curfews are another form of ERs.

Apart from these often-amended ERs, there are countless others, some that are clearly attempts by the Government of the day to bypass the legislative process.

For example, there are ERs on Industrial Disputes, Prohibition of Importation of Instruments and Appliances for Gaming, Regulation of the Use of Boats with Outboard Motors, and even on the Use of Motor Vehicles with Tinted Glasses.

In August 1998, the government attempted to postpone elections for five Provincial Councils using ERs but, in that case, the Supreme Court ruled that Government had gone too far and breached constitutional provisions on the freedom of expression.

A United Nations Working Group that visited Sri Lanka in 1999 recommended that the ERs in place at the time "should be abolished or otherwise brought into line with internationally accepted standards of personal liberty, due process of law and humane treatment of prisoners."

Far from complying with its obligations under international human rights law, however, the Sri Lankan government has instead further eroded the human rights guaranteed in international human rights treaties with the emergency regulations promulgated on 3 May 2000 and their subsequent amendments.

Despite widespread criticism by international human rights agencies, the US State Department and the European Union, the Sri Lankan Government, declaring that the country was in a "state of war" in May 2000, widened the powers of the President and the security forces even further. It is estimated that some 18,000 people, mostly Tamils, were arrested under ERs and the PTA in 2000 alone.

So far we have seen that it is not just the ER concerning the proscription of the LTTE that needs repeal, but all of Sri Lanka's draconian ERs.

However, there is another more fundamental impediment to discussion of meaningful solutions to Sri Lanka's woes: the Sixth Amendment to the Constitution.

Passed by the UNP super-majority in Parliament in 1983, the Sixth Amendment inserted Article 157A into the Constitution. Section (1) is clear about the Amendment's intent: "No person shall, directly or indirectly, in or outside Sri Lanka, support, espouse, promote, finance, encourage or advocate the establishment of a separate State within the territory of Sri Lanka."

Similarly, the Article prohibits any political party or other association or organisation from having the establishment of a separate state as one of its aims.

Further, the Amendment requires every member of Parliament, the civil services, local authorities or any other Government official to take an oath swearing that they will comply with Section 157A.

No other vibrant democracy, however threatened it may be by separatism, has enacted a similar set of provisions. After all, a mature democracy can only evolve if even the thorniest issues are debated and resolved.

The Sri Lankan solution of banning even the support, advocacy and espousal of greater autonomy is undemocratic and affects Tamils unfairly - particularly it denies them a key aspect of their right to self-determination.

These Constitutional provisions, in addition to the PTA and the ERs, have had the effect of emasculating Tamil parliamentary parties and forced Tamil aspirations to take voice outside the Parliamentary process.

Seen in this light, whether the Government de-proscribes the LTTE or not, is not so important in the long-term. After all, banning the messenger will not get rid of the message. In the Sri Lankan case, it is time for that message to be discussed in a sensible and genuine forum.

All this, of course, begs the question as to whether the Sri Lankan Government is actually willing to hear the message.

As DBS Jeyarajah a columnist with the Sunday Leader says, "The Government �has to cater to the Sinhala hardline constituency outside Parliament and minority parties inside Parliament is apparently reluctant to/incapable of defying the Sinhala Buddhist Constituency - even if it can stomach its own pride."