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18 May, 2009

AHRC asks Sri Lanka to end operation of anti-terrorism laws

The Asian Human Rights Commission, Hong Kong, says in a statement:

The Sri Lankan government has officially declared victory against the LTTE. The Secretary of Defence, in an interview to the BBC Sinhala Service on Sunday, said that "the LTTE does not exist anymore." (A reputed journalist reported the possibility of the LTTE leaders having committed mass suicide and the government has not revealed the manner in which the LTTE has ceased to exist).

With the end of the LTTE there is no longer any justification for the continuation of the emergency and anti-terrorism laws which are operating in all parts of Sri Lanka. The essence of these laws is to suspend the operation of the normal laws of the country and such suspensions cripple the rule of law, due process and democracy.

The best way to mark the end of the LTTE is to allow people to breathe freely by suspending emergency and anti-terrorism laws.

Extraordinary powers given under anti-terrorism laws allow for:
• prolonged detention,
• disempowerment of the judiciary in exercising the normal functions relating to arrest and detention,
• the detention of persons in special places which are not normally authorised as places of detention,
• preventive detention,
• draconian laws to restrict freedom of expression and the freedom of the press,
• severe restrictions on freedom of assembly, thus restricting legitimate forms of protest such as meetings, rallies, demonstrations and the like,
• severe restrictions on the formation of associations.

These restrictions virtually cripple the operation of the legal process under the normal supervision of the courts. In fact, the emergency and anti-terrorism laws place some government officials, such as the Secretary of Defence, in a higher position than the courts.

Local and international law provides for the derogation of certain rights when there is a situation such as, 'In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed.' Such a situation no longer exists by the very admission of the Sri Lankan government itself. The public proclamation now is that the LTTE has been completely defeated which amounts to a policy statement that the public emergency threatening the life of the nation no longer exists.

The relevant article in the International Covenant on Civil and Political Rights states as follows:

4.1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

The operation of emergency and/or anti-terrorism laws has continued in Sri Lanka with brief intervals since 1971. In 1971 and between 1987 and 1991 such suspensions of the normal laws was done as the JVP was considered by the government to have created a situation where there was a: '......public emergency which threatens the life of the nation and the existence of which is officially proclaimed.' From the late 70s up to now similar provisions suspending normal laws have been justified by the government against the JVP and LTTE.

Emergency and anti-terrorism laws are a tremendous burden on the operation of the normal legal process. When extraordinary laws that allow the special suspensions of the general law of the country operate it permeates the normal rule of law system and virtually paralyses it. When such laws exist for any length of time they can destroy the rule of law system altogether. The collapse of the rule of law system in Sri Lanka has been noted by everyone and one of the contributory factors has been the continuing use of such extraordinary laws.

Emergency and anti-terrorism laws create a situation of terror and fear psychosis. One of the major challenges that the country will face in the immediate future is how to exorcise such terror and fear and the first step towards that is the abolition of these laws.

It is hoped that the government will not look for another 'demon', whether real or imagined, in order to justify the continuation of emergency and anti terrorism laws. The government's propaganda machinery, which has for a long time depended heavily on the existence of the LTTE for the purpose of justifying all forms of terror exercised by the state, is very likely to look for another demon or even a phantom in order to continue with its vicious propaganda for the purpose of controlling the entire population.

It is time for the nation to be free and once again to be able to engage in its own diverse discourses in order to find solutions to the millions of problems that society is now faced with. The country's normal legal framework provides for such normal living. Among the problems that require freedom for the purpose of finding solutions is the immediate problem of the large numbers of IDPs. Large numbers of their relatives in Sri Lanka and abroad are anxious about their wellbeing and, in fact, the entire nation and the international community want to participate in making their situation less miserable. Also finding solutions to the minority problem is possible only within the framework of the operation of normal laws and the possibilities of the free exchange of ideas.

In view of the developments of the past few days it will not be possible for the government to justify the continuation of the emergency and anti-terrorism laws, either to the local population or the international community. Such a move will only give credence to the accusation that there are ulterior motives for maintaining the operation of such laws.

All political parties in Sri Lanka, the media and civil society should now do everything possible to ensure that these emergency and anti-terrorism laws are withdrawn without delay. The United Nations Secretary General, Ban Ki Moon was requested by the Security Council to take all appropriate measures to deal with the present situation and the Sri Lankan government was requested to cooperate with the Secretary General. We urge the Secretary General to request the lifting of the emergency and anti-terrorism laws in order to facilitate proper measures to deal with the humanitarian crisis. We also urge the United Nations Human Rights Commissioner, the leaders of the governments that have in recent time shown interest in the situation in Sri Lanka and the Diaspora (Sinhalese and Tamil), in particular who will want the problems of the IDPs and the minorities to be dealt with in an accountable and transparent manner, to make it a priority to see that these laws are withdrawn immediately.

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

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