Sri Lankan law students have been reporting for JURIST on the situation in that country since mass protests and the physical invasion of the President’s House in Colombo by demonstrators forced the departure and resignation of Sri Lanka’s sitting president in July and precipitated the imposition of emergency rule. Now that the state of emergency in the country is being ended, Saheli Wikramanayake, a final year law student at the Faculty of Law, University of Colombo, files this perspective.
Thrice this year, Sri Lanka has been in a State of Emergency declared by the Executive President. This was done twice by former President Gotabaya Rajapakse and once by Ranil Wickremesinghe, whose declaration lapsed today, Thursday. Constitutionally, the power is vested in the President if he is of the opinion that it is expedient to do so, for public security, public order, or maintenance or supplies and services essential for the life of the community. But this extraordinary power has long been used (and misused) by executive presidents in Sri Lanka for decades at a stretch, particularly to stifle dissent.
In the Emergency Regulations promulgated recently, several provisions stand out as particularly dangerous. For instance, the Regulations gave both the Police and the Armed Forces powers of search and arrest and allowed the person arrested to be held in custody without being brought before a judge for far longer than under regular law. It also conferred on authorites the power to search and take fingerprints or other information from people who were merely witnesses to an offence under investigation.
Bafflingly, this power was granted for several offences that seemed to have no nexus to public security or public order; it included offences such as grave sexual abuse, human trafficking, and unnatural offences (a colonial-era penal provision that has long been used to target the LGBTQ+ community). The government did later remove some of these from the regulations. But why was it necessary to bring these offences under the purview of the Emergency Regulations, instead of the normal law? It remains unclear and raises red flags about the intentions of the government.
Another insidious aspect of the Regulations were the mandatory minimum punishment set for selected offences, including theft, unlawful assemblies, and offences against property – presumably, those that are seen to have a connection with protests. Offences that under normal law carry a mandatory minimum sentence of three months, could under Regulations result in life imprisonment or imprisonment for a period of 20 years – an extreme punishment that seems disproportionate for the crime. The Regulations also allowed the state to crack down on individuals who spread information that causes “public alarm,” including on social media. In theory, even a completely true exposé of corruption could meet this criteria and be curtailed. While the regulations were introduced to stop violent protests, the provisions were so broad as to cover any form of dissent.
The Emergency Regulations were challenged through a fundamental rights petition before the Supreme Court. The State, in defense of the Regulations, argued that the provisions challenged haven’t been used against anyone. That much is true. But the government has used the regular law to stifle dissent. This has been done by tactics like summoning protestors to the police or visiting their homes, imposing travel bans, and cancelling the visa of a tourist who shared content relating to the protest. These acts, combined with the overhanging threat of the Emergency Regulations, is likely to have a chilling ongoing effect on freedom of speech and expression.
Another argument made by the State is that the Emergency Regulations have been necessary for the sake of stability. In a country in the throes of an economic and political crisis, it is undoubtable that stability is important. But can stability truly be established by brute force and fear? Many of the underlying causes behind the criticism of the government still remain unaddressed today, even if the people have been stifled from voicing their concerns. In 1993, in the case of Amaratunge v Sirimal, Justice Mark Fernando of Sri Lanka’s Supreme Court made a remark that remains relevant.
“Stifling the peaceful expression of legitimate dissent today can only result, inexorably, in the catastrophic explosion of violence some other day.”
In August, the Supreme Court granted leave to proceed in the application challenging the Regulations, and asked the Attorney General to advise the State on provisions that may require changing. A few days later, on the 16th of August, this past Tuesday, the President announced that the state of emergency will not be extended beyond this week, and it was scheduled to lapse today. This is a positive step, but it is no guarantee that the state has changed its attitude towards dissent. That these draconian Regulations were brought in the first place is chilling, and reflects an all-too-common trend in Sri Lanka.