In response to a call by the opposition and civil society to lift the state of emergency and to repeal the Prevention of Terrorism Act (PTA) in consequence of the end of the war, the Leader of the House, Nimal Siripala de Silva informed parliament on Tuesday, May 26, 2009, that the government has no intention of doing so at present. The stated reasons are that the threat of terrorism continues, remaining LTTE cadres in hiding need to be weeded out, and investigations regarding those already in detention are incomplete.

This is a predictable and even unsurprising response from the government, because as students of states of emergency will know, the present government is only acting in broadly comparable terms with its predecessors, as well as many other governments elsewhere. This is due to what I have described elsewhere as the ‘normalisation of the exception’ (see Asanga Welikala (2008) A State of Permanent Crisis: Constitutional Government, Fundamental Rights, And States Of Emergency In Sri Lanka (Colombo: CPA & FNF)).

Implicit in the central tension between order and democracy which pervades the constitutional and legal treatment of states of emergency, is the notion that crises and emergencies are the ‘exception’ to the norm of constitutional government, and accordingly, that legal provision for emergency measures be presumptively based on a return to ‘normality’ as quickly and with least damage to the democratic order as possible.

This recognises that some of the ordinary checks and balances as well as certain liberties may be restricted or even altogether suspended during a crisis, but it does not mean granting a constitutional carte blanche to the executive in perpetuity.

However, in the Sri Lankan experience, what is immediately clear is that the presumption of exceptionalism with regard to emergencies cannot form a comprehensive basis of an account of states of emergency, because the exception has quite clearly become the norm. From the early 1970s, responding to two insurgencies in the south and the protracted civil war, Sri Lanka has been governed under emergency powers more or less continually.

Thus the constitutional and legal regulatory framework embodied in the Constitution and in the Public Security Ordinance (PSO) have come to be treated and assessed as more or less permanent power-conferring provisions for general governance, notwithstanding their intended purpose as occasionally invoked, special and temporary measures.

Therefore, until such time as the government determines, largely at its discretion, that the last LTTE cadre has been captured, killed or otherwise dealt with, it is no surprise at all that it will continue to avail itself of extraordinary powers conferred under both the state of emergency as well as the PTA. My argument here is that while this is understandable in historical and political terms, it is not entirely justifiable from the perspective of international best practice relating to constitutional government, human rights, and states of emergency.

In contemporary experience, the normalisation of the exception has several characteristics. The first is that each precedent sets a higher bar for the next, which inflates the scope and nature of extraordinary powers with each successive emergency. That is, powers that are granted to government during an emergency set precedents not only for future emergencies, but also for the notion of normalcy itself. Whereas the nature and scope of the powers deemed necessary to deal with the ‘original’ crisis would have been judged according to what were the normal conditions preceding that crisis, in subsequent emergencies, this question would be decided by reference to the powers of preceding emergencies.

A good contrast would be between the (what seem now like quaint and rather innocuous) emergency powers granted during the communal riots of 1958, with the vast array of powers now available to the government under various emergency regulations. To be sure, the threat posed by armed conflict in the recent past was exponentially larger than the civil commotion of 1958, but that does not vitiate the broader observation.

As the acceptable boundaries of emergency powers become redefined in this way, the public becomes accustomed to the expansion of government, as well as to measures they would ordinarily have rejected. This ‘getting used to’ effect, for obvious reasons, starts with government and officialdom. There are several characteristics of this dynamic.

First, it is easier to enact new measures than to review whether what is already available is sufficient, resulting in an accumulation of a complex web of emergency laws and powers. Secondly, officials grow accustomed to the convenience of lesser legal restrictions and limitations on their scope of action, resulting in an unwillingness to give up that freedom of action when the threat abates.

Thus when powers of detention without charge for long periods in terrorism related matters have been made available during the war, it is unlikely that law enforcement authorities would willingly subject themselves to the procedural and substantive constraints of the Penal Code and the Code of Criminal Procedure, as long as the spectre of terrorism remains.

Thirdly, we have seen the use of emergency powers for purposes other than those for which they were enacted. A comprehensive study of emergency regulations in force in 1992 by the University of Colombo found that they were used for regulating such matters as the adoption of children, edible salt and driving licenses!

Another feature of how the exception becomes normalised is in the role of the judiciary. In Sri Lanka we have time and again seen how judges are generally reluctant to second-guess the executive during an emergency, the time ironically that their role as guarantors of fundamental rights assumes the greatest significance. Among many, one example of this is how the Supreme Court last year refused to intervene in the detention of the journalist J.S. Tissainayagam, despite his claim that even the attenuated procedural safeguards under the emergency regulations had been denied him.

Apart from this is the, often imperceptible, occurrence of transubstantiation, whereby due to the constant state of emergency, provisions of ordinary law and even the constitution come to be continuously interpreted in the light of emergency rule. A very good example of this is that a large segment of the fundamental rights jurisprudence of the Sri Lankan Supreme Court concerns violations of fundamental rights through the exercise of emergency powers.

Especially in the case of infringements of critical civil liberties such as the freedom of expression, many of the Supreme Court’s most important pronouncements have been concerned with resolving emergency regulations, or executive action thereunder, inconsistent with fundamental rights.

Without belittling the Supreme Court or its many important determinations, the point remains that an important source of law in a common law system, in this respect the case law of the highest court in the land deciding the reach of the constitutional bill of rights, has not evolved under normalcy, but rather, under a normalisation of the exception.

If this helps explain the normalisation of the exception, it does nothing to exonerate government from continuing to use the spectre of terrorism to perpetuate what Dyzenhaus calls the ‘National Security State.’ In any event, the normalisation of the exception in the past three decades has been due to the undeniable existence of armed conflict of one kind or the other throughout that period. Recognising that the state should be empowered to deal with these armed challenges, certain special powers were given to it. Now, though, rid of the scourge of terrorism, we have peace. So what’s the argument?

Extraordinary powers under a constitutionally regulated state of emergency are conferred on government to deal with grave and exceptional challenges threatening the life of the nation; not to allow it to habitually override the core democratic values of the constitutional order such as fundamental human rights, the rule of law, and the separation of powers, or for use during peacetime merely because it is more convenient. If the State uses emergency powers to institutionalise authoritarianism, then the moral and political justification for constitutionally providing for emergency powers is fatally undermined, and there would be nothing left worth defending in the constitutional order.

The powers that the government has arrogated to itself under various emergency regulations (especially since 2004) and the PTA are extraordinary, extensive and intrusive, in many respects inconsistent with international standards regarding both human rights and states of emergency, and applied with such arbitrariness and insensitivity to civil liberty that there were genuine questions, even at the height of the war, as to whether they were really legitimate in a democracy.

The government will use the consensus generating effect, at least among the majority community, of its military success to perpetuate not only the state of emergency but also the specific powers currently available to it. But the question is whether if the intention is to really return to normalcy, all of the powers currently in force are necessary. Given the crushing military defeat of the LTTE (thus removing the clear and present danger threatening the life of the nation), many of the more pervasive emergency powers may and must be repealed, leaving only those within a stated and limited timeframe, that are absolutely necessary for dealing with the remaining members of that organisation.

If not, valid questions can be raised regarding both good intentions as well as commitment to addressing the rights abuses that occurred under emergency, and worse, the institutionalised impunity for extra-legal action that has to be urgently addressed in a return to civilised normalcy.

If nothing else, it ought to be the inexorable logic of the government’s own public presentation of victory in the war against the LTTE that the state of emergency must come to an end sooner rather than later. That the government refuses to lift the emergency, or repeal the more expansive emergency powers which have no continuing necessity, or at the very least, give a concrete and reasonably proximate date for its removal is, therefore, cause for disquiet.