Theorising Lanka’s thirty years of Emergency Rule
A state of permanent crisis – Constitutional government, fundamental rights and states of emergency in Sri Lanka; by Asanga Welikala, 259 pages. Friedrich Naumann Stiftung and Centre for Policy Alternatives, Colombo; 2008.

Ted Grant, the grandfather of British Trotskyism, coined the epithet "regimes of crisis" to describe the post-colonial state in many third world countries. Prabhat Patnaik, in his August 4th web article Coup d’état, says that the renowned economist Michael Kalecki spelt out that post-colonial regimes "derived their specific character from the fact that they were led not by the bourgeoisie but by the petty-bourgeoisie. The bourgeoisie itself, having been hemmed in by the colonial regime, wanted, upon decolonization, to pursue a trajectory of development that was relatively autonomous of metropolitan capital and to use the state for that purpose". In a Lankan context, after 1956, the bourgeois was content to play second fiddle to such a regime to promote capitalist development.

For about a decade, starting 1978, a concerted effort was made to abandon this constraint in favour of neo-liberalism directly aligned to global capital, but there was a retreat to a more halfway position due to pressure from subaltern classes during the Premadasa and Kumaratunga presidencies. More important for our purposes, states led by the petty-bourgeoisie have the peculiar characteristic of intensely ethnic, or religious, cultural and ideological roots. Hence, their modalities of development involve a trajectory of conflict with ethnic competitors, in Lanka’s case, the Tamils. Though the JVP uprising of 1989-90 nearly overthrew the state, the broader reason for 30 years of near unbroken emergency rule in Lanka relates to the unresolved national question and the civil war that sprang there from. Emergency rule also facilitated usurpation and abuse of power and unchecked corruption, whose principal beneficiaries were politicos and hangers-on of successive regimes.

Legal and constitutional dimensions

Socio-economics and political dynamics is not what Welikala’s book is about. The book has three themes; the theoretical underpinning of the concept of a state of emergency, abuses and the subversion of democracy by emergency provisions, and thirdly the institutions and standards governing states of emergency in international law.

The longest chapter, Chapter 4, is on the third, the international dimension and it is worth a careful read, but it is on this that I will say the least within the space available to me today. In international law and its covenants and protocols, suspension of normal rights and freedoms and the declaration of an emergency must be justified by an actual or imminent threat to the organised life of the community and of the whole nation, and the crisis must be so exceptional that normal laws are inadequate to deal with it. It must be of the shortest feasible duration and lifted as soon as the threat is diminished. Definition of what constitutes an exceptional emergency is difficult if not impossible; hence the discretion of the president is customary. For this and other reasons, international law insists on oversight of the executive by the legislature during an emergency, and on accountability, meaning the executive is not granted the freedom of the wild ass and remains answerable for its deeds. Signatory governments to international covenants are obliged to report and justify declarations of emergency, account for their actions and demonstrate the need for extensions.

The norm and the exception

The first two chapters are devoted, to a review of the historical roots of exceptional provisions and a discussion of theoretical "models" dealing with the distinction between the norm and the exception. Welikala leans heavily on a recent book by Oren Gross and Ni Aolain from which he quotes extensively (Law in times of crisis; Emergency powers in theory and practice, Cambridge 2006); apparently this is the new bible on the subject. I will take out two historical models because of their unusual interest – the provision for a Dictator during the Roman Republic (510-44BC) and Carl Schmitt’s theory of the Sovereign Dictator in Nazi Germany.

‘Dictator’ in Roman usage did not have pejorative connotations; the word came from dictus meaning appointed, because unlike the two elected Consuls and the Senators, the Dictator was appointed by one of the Consuls upon the direction of the Senate, to deal with an extreme emergency such as war or natural disaster when the provisions of normal law were inadequate. The appointment was for six months and non-renewable. The Dictator could not change the institutions of state or promulgate new legislation, but did have substantial other powers such as command of the army, impunity from prosecution, and the plenary power of the Consuls. Though non-renewable there are several instances of reappointment of the same person to deal with emergencies at different points in time.

Some Dictators, like the humble and noble minded Cincinnatus, are remembered with affection. The procedure was resorted to 87 times during the 466 years of the Republic and at least on two occasions there appear to have been four appointments within two years. There were none in the 120 years prior to 82BC or in the 32 years between 81BC and 49BC. The system worked well and succeeded in repelling invasions and subjugating rebellions without eroding the rights and freedoms of Roman citizens. The short duration and prohibition on extension were crucial in obviating political or pecuniary aggrandisement and abuse of power. The citizens of ancient Rome were palpably more intelligent than our contemporary compatriots! The system broke down with the successive appointment of Julius Caesar for five terms, his assassination in 44BC, and the ascent of Augustus as the first emperor.

The second example comes from the other end of the spectrum. Carl Schmitt, a professor at Berlin University from 1933 to 1945, constructed a theory to justify Nazism as the norm. He said ‘Sovereign Dictatorship’ was the authentic form of the state shorn of democratic disguise, which disguise the democratic phoney would cast off as soon as its existence was threatened. The notion of democracy as the norm and emergency rule as the exception was pure squeamishness. The reality was that true power rested in the state and the leader. In Schmitt’s theory, dictatorship was more effective and more in line with the underlying reality of political power. It was the dictator who decided when it was ordinary and when an emergency, what freedoms to suspend, and what extra powers to assume. "The norm is subservient to the exception".

Schmitt’s thesis will be music to the ears of successive Lankan governments. George W. Bush, the apostle of war on terror, unlawful combatant status sans Geneva Convention protection, torture during interrogation, and electronic surveillance, finds here a theoretical foundation. There has been renewed interest in Schmitt’s writings in neo-con circles in America.

Part II of Welikala’s A state of permanent crisis is devoted to Lanka; but not what the reader may expect; horror stories of torture, abduction, arbitrary arrest and unwarranted confinement that emergency rule has come to symbolise for all, but more so for Tamils in our ethno oriented emergency regimen. No, instead we are treated to the constitutional provisions and laws relating to emergency, and the failure of legal standards and jurisprudence when measured against international norms. It is written for laymen, but it is about the legal side.

The Public Security Ordinance (PSO) of 1949 (amended), the Prevention of Terrorism (Temporary Provisions – ha, ha what a laugh) Act of 1979 and the numerous Regulations decreed by the executive, come in for a lambasting. Epithets such as "aberration of the rule of law" and "gateway to systematic abuse of human rights" give a flavour of the author’s repugnance for the edifice of legal and constitutional provisions that subvert our rights and freedoms. These sections are a must for anyone wanting a grasp of the legal framework that holds up the barbed wire fence behind which we live.

Unhappiness that these customs are more honoured in the breach than the observance is compounded by the abject failure of a lax legislature to exercise any credible supervision of the executive, and a pliant judiciary which manifests excessive deference to a strident executive. On the last count however Welikala does see a silver lining beginning with a landmark judgement of Sharvananda C.J. in 1987 which disallowed certain restrictions imposed on freedom of expression which failed a ‘reasonableness test’. The Supreme Court has since been increasingly robust and in year 2000, for the first time, actually struck down an emergency regulation. In 2008 another landmark judgement disallowed the forcible removal of Tamils from Colombo.

The last ten pages of the book deal with a singular lapse of the Supreme Court (SC) in disallowing reconsideration of a petition by Singarassa who had appealed to the international Human Rights Commission against a prior SC judgement and won the ‘expression of a favourable view’. Welikala’s believes that the SC’s rejection of the petition is perplexing and incomprehensible, that it weakens Lanka’s position as a nation that upholds international treaty and covenant obligations, and is not good in law. I recall reading all I could of the case in the newspapers at the time and as they would say in legalese, "I concur" with Welikala.

It is a good book, buy it and read it. It deserves a place in the library of anyone interested in human rights, or politics, or needs a laymen’s guide to emergency laws.